Copyright and education: new approach for the time of the pandemic

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Do we need a new approach to copyright, as it applies to education? What has the pandemic changed? We will ask these questions during a Copyright for Education online event this Thursday, 29th of October).The session is co-organised with our member, Centrum Cyfrowe and is part of this year’s Open Education Policy Forum.

The Copyright for Education online event will take place on Thursday, 29th of October, at 13.00-14.15 UTC. You can register for the event here. Registered participants will receive a Zoom link on the day of the event.

We are inviting to this session educators, copyright scholars, activists and educational stakeholders. Our speakers include Meredith Jacob (PIJIP / Creative Commons USA, USA), Teresa Nobre (Communia Association, Portugal) and Allan Rocha de Souza (UFRRJ, Brazil) and will be moderated by Alek Tarkowski (Communia / Centrum Cyfrowe Foundation, Poland).

Debates about copyright reform, as seen from the perspective of educational stakeholders, often concern adjusting the law to the requirements of digital education. During the pandemic, we all experienced a sudden shift to digital, remote education. Did current copyright law prove to be fit for purpose, or did it become an obstacle to teaching and learning? What kind of copyright law do we require to support resilient education during the ongoing pandemic?

In this session, we want to highlight the growing importance of strong educational exceptions that are necessary for effective and resilient remote education. Our speakers will present perspectives from around the world and cases of different educational contexts and legal systems. We will also discuss ongoing legislative processes – such as the implementation of the new European Copyright Directive or ongoing policy debates at WIPO.

Our response to the EC consultations on digital technologies and the cultural heritage sector

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This week, we have submitted our response to the European Commission’s consultation on the opportunities offered by digital technologies for the cultural heritage sector​. We agree, it is high time to revisit the approach defined by the Recommendation on the digitisation and online accessibility of cultural material and digital preservation from 2011. Ten years is a lot of time and a new approach is needed due to three factors: advances in digitisation of heritage, legal reforms that took place in the meantime – especially the new Copyright Directive, and the rapidly changing digital environment.

We believe that cultural policies, to be fit for their purpose both today and in the years ahead, need to be based on an updated vision of the role of digital heritage for Europe’s societies. We need strategies that support the creation of social, cultural, and economic value based on Europe’s heritage. This is especially true in 2020, when during the Covid-19 pandemic the value of digitised cultural heritage for our societies became clearly visible. Yet it was also a time when many of the cultural heritage institutions faced a crisis.

We need an approach to cultural heritage that recognizes its value to the society and ensures the resilience of cultural heritage institutions and the cultural sector.

Below you will find highlights of the issues that we raise in our response. You can also download the full response as a PDF file.

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Communia Salon 2020/4: Which digital policies work for cultural heritage in 2020s?

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On Thursday, the 17th of September, we will be organising the fourth Communia Salon this year. During the online event, organised in cooperation with the #NoWorries project, we want to discuss policies that concern digital cultural heritage. Our meeting will take place right after the European Commission will close its consultation on opportunities offered by digital technologies for the culture heritage sector. We also want to discuss the ongoing implementation of the Copyright in the Digital Single Market Directive, and the rules that it will set for cultural heritage institutions.

In the consultations, the European Commission is referring to the “Recommendation on the digitisation and online accessibility of cultural material and digital preservation”, from 2011.  Almost a decade has passed since then, and large amounts of heritage have been digitised. The term “digitisation” has been replaced with the idea of digital transformation. At the same time, barriers and challenges to access and reuse still remain – heritage in digitised form is a potentially underused resource.

During the salon, we want to ask representatives of key stakeholders from the heritage sector: what are the effects of digital technologies on the cultural heritage sector, and how should we shape them with appropriate policies? With regard to copyright regulations, we want to discuss wheter the reform went far enough, and whether it struck the the right balance? We also want to consider whether any other policies are needed for Europe to fully benefit from digital heritage?

Join us for a debate moderated by Alek Tarkowski (Communia / Centrum Cyfrowe), with the participation of Paul Keller (Communia / IViR), Ariadna Matas (Europeana), Hessel van Oorschot (Open Nederland / Tribe of Noise) and Brigitte Vézina (Creative Commons).

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 17th of September, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

The Netherlands leads way with implementation of the new educational exception

Dutch Ship
Simple implementation, without the license override mechanism
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Just one month after the new Copyright in the Digital Single Market Directive went into force, the Dutch government has shared their proposal for its implementation, through an amendment of their existing copyright law. The proposal is currently in a public consultation phase.

We would like to provide here an overview of the Dutch proposal to implement locally the new EU educational exception (article 5 in the final version of the Directive). This is the beginning of our effort to track how countries across Europe will implement, over the coming two years, this mandatory exception to copyright for educational purposes.

We are in particular interested in three issues that have been our concern during the legislative debate on this exception:

  • Are Member States introducing the controversial article 5(2), through which they have the option to make the exception no longer applicable and available to educational establishments if “suitable licenses are easily available on the market (what we call the issue of “license priority”);
  • What is the scope of the exception:
    • How are educational institutions and staff defined?
    • Will the educational community be able to rely on email, cloud services and other password-protected environments, or will these not be considered “secured electronic environments” under the exception?
    • Will Member States define a priori the extent to which a work can be used, leading to different quantity limits in different countries, or will they let practice and courts (relying on the three-step test) define what is balanced in a given situation?

Choices made on these issues will determine, how broadly – or narrowly – can the exception be depended on. Taken together, they will also create either a harmonized or fragmented legal landscape for teachers and learners across the Union.

  • Are Member States changing remuneration rules for educational uses? Currently, 17 Member States do not remunerate most or all of the used permitted under their existing education exceptions – will this change with the new exception?

The Dutch proposal is a simple amendment that adds two paragraphs to the existing educational exception (article 16 of the Dutch Copyright Law). In relation to our issues of particular concern, we note that the Dutch government:

  • decided not to use the article 5(2) backdoor to hack the new educational exception and make it partially or fully not applicable in the Netherlands, which we applaud (because we believe – along with the CJUE – that users should have the right to benefit from the copyright exceptions that were created for their benefit at all times, and not only when there are no market options for them to get a license for those minimum uses that are protected by the exception);
  • could do more to provide as broad a scope for the exception as possible, within the boundaries set by the Directive;
  • has proposed not to change its approach to remuneration – use of content under the exception requires fair compensation (art. 16.1.5°).

Additionally, the proposal includes an explicit provision against contractual override (art. 16.6), which implements another important element of the new EU educational exception.

We will be working with our Dutch partners in the consultation phase, both to provide feedback on the government’s proposal, and to monitor other responses to the proposal. The consultations are open until 2 September 2019.

To block or not to block? Commission’s vague “non-paper” does not meet our minimal standard

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Commission non-paper would support filtering
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This week, Politico.eu has shared a “non-paper” prepared by the European Commission on article 13, ahead of the next trilogue on 13 December. The Commission has been tasked during the recent trilogue meeting with proposing a compromise solution on the issue of “mitigation of liability in the absence of a license”, in face of diverging views between the European Parliament and the Council.

In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.

The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.

Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.

We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling. Continue reading

Last call to push for a good EU copyright reform for education: Joint conclusions from the ETUCE-EFEE-COMMUNIA conference

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Support for clear and broad exception for education and research purposes
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Today, we publish joint conclusions on better copyright for higher education and research together with ETUCE / EI federations of teachers’ trade unions and EFEE, the European Federation of Education Employers. This document is an outcome of a joint high level conference organized on 11 April 2018 in Brussels, with the financial support of the European Union Intellectual Property Office (EUIPO).

The event marked for us an important opportunity to discuss with education stakeholders how copyright law can support sound educational policy. This been the goal of our Copyright for Education project, initiated two years ago. Through this project, we have been aiming to strengthen the visibility and position of education stakeholders in the copyright reform debate – in particular with extent to issues like the education exception, which affects them directly.

This joint initiative was coordinated by ETUCE, also with the goal of lobbying for good copyright for education during the vote in the European Parliament on 20 June. The shared conclusions from the conference partners stress that:

#1: A genuine copyright exception

Educators would benefit from an EU-wide education exception – without mandatory remuneration – , which educators can rely upon across the European Union and which defines a minimum standard. Removing copyright restrictions on the digital use of illustrative materials including textbooks for educational purposes would increase legal certainty as this would reduce the financial burdens on education systems and institutions.Continue reading

Voss’ unbalanced approach to the education exception

The Shop of the Bookdealer Pieter Meijer Warnars on the Vijgendam in Amsterdam
legislators should care about teachers, not publishers
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During the recent high-level conference on copyright in higher education, which we organized with the European Trade Union Committee for Education (ETUCE) and the European Federation of Education Employers (EFEE), we had the pleasure of hosting MEP Alex Voss. It was a rare opportunity for us to hear the rapporteur for the Copyright in the DSM Directive dossier speak about the educational exception. Here is our critical take on this speech, which gives a good sense of how Mr. Voss sees the issue of copyright and education.

Mr. Voss defined the general question as defining “when to pay, and when to use copyright protected works freely”. We believe that we will never have good copyright for education if we see it as just an issue of transfer of funds.

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Estonian Presidency makes one more step towards licensing educational content

Soap Bubbles
Do not import across Europe Extended Collective Licensing for education
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Do you remember the idea of educational fair use? The idea that education can benefit from a broad, flexible exception for a wide range of uses of copyrighted content while teaching and learning? The question is worth asking, as this progressive approach to copyright and education has not been mentioned even once in the ongoing European copyright reform process. It is a sign of how far away we are from right copyright for education. Instead, we are being pulled ever deeper into an opposite model, in which licensing is seen as the best copyright solution for educators and educational institutions. The Council of the European Union has just made one more step in that direction.

A quick reminder where we are with the copyright reform process in Brussels: the key vote in the JURI committee is continuously extended, and currently is planned for January 2018. The date should be seen as tentative. In the meantime, one more committee – the civil liberties committee LIBE – will make it’s vote in late November (but with a sole focus on the controversial article 13, the content filter article). As we await decisions to be made in the European Parliament, a proposal from the Council, prepared by the Estonian Presidency, has recently surfaced. Unfortunately, it spells one more step towards the licensing chasm for the educational sector.Continue reading

Can Open Education succeed without copyright reform? Reflections from UNESCO 2nd World OER Congress.

An Evening School
OER policy and copyright reform go hand in hand
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Between 18-20 September we travelled to Ljubljana to attend the 2nd World Open Educational Resources Congress, organized by UNESCO. Our aim was to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education.

Unfortunately, the new Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, does not include actions related to copyright reform. We will continue working with the UNESCO OER policy community to change this.

Educational exceptions, and other issues related to how copyright law regulates education, have traditionally not been considered by the OER stakeholders. The Paris OER Declaration, which was the result of the first UNESCO OER Congress in 2012, failed to see educational exceptions as means of facilitating use and reuse of resources in education.

Our session, titled “Right Copyright for Education Worldwide” aimed to raise awareness about the importance of copyright law, and encourage OER stakeholders to get involved in copyright reform processes around the world. The session was organized in co-operation with the Slovenian Intellectual Property Institute.

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Proposal for ancillary copyright for publishers threatens Open Access and Open Science

Imprimerie en Lettres : l'operation de la casse (fragment)
No taxes on Open Access!
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In July, ITRE Committee voted on an opinion that proposes to extend the ancillary copyright for publishers beyond the press, to include also academic publishers (read our commentary from July). In response, a large group of European academic, library, education, research and digital rights communities has published an open letter on Wednesday. In it, they point out that the proposed law will threaten Open Science and Open Access, and directly contradict the EU’s own ambitions in these fields.

Communia Association is one of the signatories of this letter. We are urging other organisations, especially those active in the fields of Open Access and Open Science, to express their support by signing this letter. Additional signatures will be collected until 1st October – you can sign the letter using this form.

Ancillary copyright extended

Ancillary copyright for publishers, a new right to collect payments and to control the use of headlines and snippets of news articles, has been one of the most controversial parts of the Proposed Directive on Copyright in the Digital Single Market. Both the rapporteur in the JURI Committee and the Estonian EU Presidency currently support this flawed proposal . They do so despite heavy criticism – not just from civil society, academia and libraries, or digital economy companies, but even from some of the Member States.

Press and academic publishers have completely different business models, based on different value creation chains. While press openly publishes content on the Web, academic publishers sell the works of academics at a hefty price, and with a heavy markup. Angelika Niebler, Herbert Reul and Christian Ehler, ITRE members who proposed the amendment that extended the right to academic publishers, have provided no rationale for granting this new right also to academic publishers. They also failed to explain why they are supporting a regulation that will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information.Continue reading