The Croatian proposal to implement the new education exception: it could be better

RP-F-2000-21-1
Make copyright truly fit for digital education
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In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education. 

Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

The Croatian government opened public consultations on the First Draft bill, which also included a virtual public presentation of the Draft bill on 15 May 2020, and was eventually closed on 17 May 2020. While the report on comments of the First Draft bill was scheduled for the end of May, it was pushed forward due to the sheer volume of feedback received. On 7 October 2020, the Croatian State Intellectual Property Office finally published the Report on public consultation on the First Draft bill, including all 727 comments received by the interested stakeholders.

On 16 November 2020, a Second Draft bill was tabled in the parliamentary committee, and on 19 November 2020 it was accepted. The provisions regarding a new exception for the creation and sharing of teaching collections (see second draft Article 192), and a new exception for digital and cross-border teaching activities (see second draft Article 194) remained unchanged from the First Draft bill (Articles 188 and 190 of the First Draft bill). The Second Draft bill is in its first reading since 11 February 2021, and any amendments cannot be proposed until it is tabled for its second reading.

What is the scope of the proposed exception for digital and cross-border education?

Article 194 of the proposed version of ZAPSP regulates the free exception for digital use for educational purposes. It states that no approval from righstholders for such use of materials shall be necessary, as long as such use is of a non-commercial nature and as long as it takes place within the educational institution, in its premises or other facilities, or through a secure electronic environment. It clarifies that “illustration for teaching” includes digital uses of copyrighted works in parts or in excerpts, for the purpose of supporting, enriching or supplementing teaching and teaching activities. It requires that the uses allowed herein shall not replace the purchase of materials, primarily intended for educational markets. It also explicitly states that the exception can be relied upon in the lifelong educational activities carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

As to the rights covered, the exception follows the minimum standard imposed by the Directive and only applies to the rights of reproduction and communication to the public, including making available to the public.

With regards to the beneficiaries, the exception covers not only activities that take place under the responsibility of an educational institution, in its premises or other facilities, or through a secure electronic environment, as mandated by the Directive, but also – in the case of lifelong educational activities – those carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

Contrary to what is prescribed by the Directive, which covers uses to the extent required by the purpose to be achieved, the proposed Croatian exception limits the use to parts or excerpts of the materials. The proposed Article 194 ZAPSP further states that the uses allowed therein shall not replace the purchase of materials primarily intended for educational markets. This wording is inspired by recital 21 of the Directive, which states that “In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market.” 

Finally, the proposed article states that the educational exception cannot be overridden by contractual provisions, and includes a cross-border provision, according to which uses covered by the exception are deemed to take place in the Member State where the educational establishment is located.

What could be improved?

While the ZAPSP Draft bill represents a positive approach towards user rights protection and proposes the implementation of a broad copyright exception, there are some aspects on which it could be improved.

First of all, the exception should not prevent the use of works in their entirety. Although, as a rule, an educational exception only allows the use of parts of works, for certain materials (e.g. an image or a poem) the work must be used in its entirety for its meaning to be perceived. The Croatian legislator should follow the wording of the Directive, which states that the materials can be used to the extent necessary to the activities permitted under the exception.

Paragraph 1 of Article 190 ZAPSP Draft bill defines the secure electronic environment as one »which can be accessed only by pupils or students and teaching staff of that educational institution, provided that the source and name of the author or other right holder must be indicated, unless this proves impossible.«. The term »secure electronic environment« should be explicitly construed so as to include emails, messaging services, group chats or any other electronic communication networks and services used for teaching as well.

In addition, Paragraph 1 of Article 194 ZAPSP Draft bill relates to the acts of reproduction and communication to the public, including making available to the public, but it does not cover the act of distribution. While this is strictly consistent with the wording of Article 5 DSM Directive, national legislators have the option to go beyond what is expressly written in the DSM Directive. In this sense, the ZAPSP Draft bill could have included the distribution of physical copies of protected content as well, taking into account that analogue uses might be needed to complement digital uses or even make them possible and might be therefore crucial for fully achieving the purpose of the provision. It would also be important to extend the scope of the exception to a right that is not harmonized at the EU level, but that is essential in an education setting, which is the right to make translations and other adaptations of copyrighted materials.

The exception for digital learning activities in Article 194 ZAPSP Draft bill should also cover a broader spectrum of educational activities: joint educational activities provided by multiple education providers, as well as educational activities provided by informal education providers. The exception should also cover uses that take place on informal learning platforms, as there is no reason to differentiate these activities from formal ones.

Finally, the exception in Article 194 ZAPSP Draft bill should stipulate that it applies also to individuals that support or complement the teachers’ activities (e.g. social workers, professionals that provide special needs support, professionals that provide extracurricular activities and support, and parents). Inclusion of such individuals in educational processes is increasingly ubiquitous, which is why any legislation looking to provide useful and relevant copyright exceptions for education should include such situations as well.

Conclusion

The Croatian Draft bill and, specifically, its provision for the implementation of Article 5 of the DSM Directive into their legal framework, although it represents a step in the right direction, still has certain room for improvement and would benefit from clearer language in certain provisions and from broadening its scope. It is certainly commendable that its provisions provide for non-remunerated copyright exceptions for educational purposes, and as such could very well prove to be a reference point for other Central European countries which have not yet produced their own draft bills.

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