Education and copyright: we were promised an exception but are offered licenses instead

i wanted exceptions but got licenses insteadLicentie

In its communication on the copyright framework, the European Commission has promised to clarify the scope of the existing exception for illustration of teaching, and its application for digital uses. The overarching goal was to have a mandatory exception that is relevant and effective in the digital age.

Having read the leaked draft of the proposed Copyright in the Digital Single Market Directive, it is clear to us that these goals will not be met. The proposed educational exception, despite having some good elements, will overall worsen the legal environment for educators. And it likely will introduce major costs for public educational systems around Europe.

The licensing narrative

The worst part of the proposed exception is a rule that gives member states the right not to apply the exception, if adequate licenses are provided by the rights holders. This is a rule that in practice makes the exception powerless as a tool for supporting education through legal means at the European level, as member states ultimately will decide whether to provide an exception. And it’s hard to imagine that they will be willing to avoid the rule “no exception can exist if licensing options are available”.

Around Europe, educators depend on the exception to conduct innovative, modern education. Yet they often fall into a grey zone of legal uncertainty – in the most typical scenario, a teacher sets up a school film club, only to find out that viewing films might not be covered by an exception. At that point, a commercial intermediary usually presents itself, and offers a licensing option. There is nothing wrong with that – other than that public school systems are not able to cover these costs. According to our analysis of the situation in Poland, if every school had to purchase one of the available licenses, the public budget would have to invest half the amount it pays every year for financial support to poor students. These are large amounts that could be invested otherwise in generally underfunded educational systems. The proposal does not seem to draw conclusions from this scenario, and seems happy to force educational institutions to adopt licenses – as there won’t be any exception available, to provide a safe, free space for educational uses.

The Commission argues, in the leaked Impact Assessment, that data from member states where licensing options proliferate show that “costs are rather limited if compared to establishments’ overall costs”. This comparison is misleading and unhelpful. Surely, licensing would cost less than upkeep of thousands of school and academic buildings, or that which is allocated for educators’ wages. But licensing fees can still be large sums—which most of the time do not fit into tight budgets. And we need to remember that the ECL scheme, demonstrated by the Commission as a best case scenario, functions well only in rich, Scandinavian countries. Continue reading

Securing user rights in education – reflections from our policy debate.

De eerste schooldag
Both copyright reform and voluntary licensing secure user rights in education
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How to secure user rights in education? This was the question we asked during a policy debate organised by Communia and hosted by MEP Michał Boni in the European Parliament on the 17th of November. Panelists, politicians and stakeholders participating in this debate discussed two approaches: the creation and use of Open Educational Resources (OER), and a progressive copyright reform for education.

While these issues are usually presented separately, as Communia we see them as two aspects of a single effort to ensure user rights in education. This two-path approach has been acknowledged at least since 2013, when the Creative Commons community argued that the movement behind open licensing policies needs to be involved in the copyright reform debate as well. Today in Europe, we are facing both developments related to OER policies (related to the Opening Up Education initiative, launched in 2013), and a copyright reform process in which education has been highlighted by the EC to be one of key areas for modernisation of copyright.Continue reading

Creative Commons Summit: next steps in copyright reform

Julia Reda at the Creative Commons Global Summit 2015
Dear CC be more than a fig leaf!
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The Creative Commons Summit, a bi-annual meeting of members of the CC network and friends of the Commons, took place in mid-October in Seoul, South Korea. One of the event’s tracks was devoted to copyright reform advocacy. The track was organised by member organisations of Communia, including Creative Commons.

In 2013, during the previous CC Summit, Creative Commons adopted a position on copyright reform. CC re-emphasized that even though the licenses are an essential mechanism to share creativity within the existing bounds of the law, it is now more important than ever to engage in a review and modernisation of copyright law itself. This commitment was confirmed during this year event.

Communia was especially honored to have MEP Julia Reda, the author of the European copyright evaluation report, give a keynote at the Summit. Reda stressed that while CC has been successful in showing how the copyright debate can be reframed, the values embraced by CC are not present enough in policy debates. Even worse, the existence and successes of Creative Commons licensing can be used as proof that the current system of copyright works, and that no fundamental change  is needed. “Be more than a fig leaf”, Reda told CC activists.

The danger, according to Reda, is that CC will become “an island of free culture in a broader sea of automated takedowns and enforcement”. If we are to avoid that, we need to move the policy debate. Activists have been good at blocking the worst reform proposals, including SOPA, PIPA, or ACTA. We have been much worse at formulating a positive reform agenda. Continue reading

Simple is beautiful. Copyright exceptions for education

Allegorie op het onderwijs
Keep it simple: make education exempt from copyright
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Being a teacher in 2015 is both easier and more difficult than it was 30 years ago. It can be more difficult as there is pressure to follow new trends in online and digital technologies, the Internet of things, social media, and a push to adopt a more interactive approach to teaching. But there are new tools and and practices to ease these new expectations. Almost any educational materials that teachers wish to use are now at their fingertips. No longer do educators need to spend their lives searching through physical libraries or collecting stacks of CDs or DVDs for viewing in their classes. Today, much of this content is available online with a simple click. But therein lies another difficulty. Copyright. Even though almost anything is now available to view, not everything can be legally used. Or – perhaps even worse – it is not clear whether a teacher or student can use it, or under what circumstances.

Exception?

What teachers legally can and cannot use is defined by educational exceptions and limitations within national copyright laws. Set out by the EU InfoSoc Directive, exceptions and limitations are not a mandatory rule within EU member states, which means member states can choose to adopt the exception or not, and within reason interpret the exception to conform to their own ideas. Since the early 2000s, the InfoSoc Directive rule of “use for the sole purpose of illustration for teaching or scientific research” has been implemented in various different ways. Some countries literally translated the provision into their legal system, while others allowed some creativity in its implementation. But to be sure, 28 member states means 28 different legal regimes. This raises several questions. What is the reason why in 2015 teachers in Poland enjoy a different set of rights than teachers living in Slovenia, Finland or Portugal? Continue reading

Expand Public Domain and User Rights: COMMUNIA position paper on copyright reform

We are publishing today our position paper on copyright reform in Europe (PDF), as a statement in the ongoing debate that focuses on the reform of the Information Society Directive.

Our position is based on the 14 policy recommendations that are at the heart of our organisation, as well as on our previous policy documents. We start by defining three basic principles:

  1. Exclusive rights should be limited.
  2. The public domain should not be eroded by legal or technical means.
  3. Limitations and exceptions to copyright should continue playing their role of adapting copyright to technological changes.

Based on them, we formulate 12 positions on  the EU copyright framework reform. We will be using them as guidance for our own advocacy work – but we present them also as recommendations for policy makers.

These positions are result of a discussion on ways of translating a general principle of defending and expanding the public domain into recommendations that fit onto current policy debates in Europe.  In this light we are pleased to see that the majority of our positions have been covered by MEP Reda in her draft report on the implementation of of the InfoSoc directive.

London Manifesto: Copyright has to be fair

“We are calling for fair copyright that is fit for purpose and will benefit every European citizen” – that is the main message of the newly published manifesto, drafted by the Libraries and Archives Copyright Alliance (LACA), convened by the British Chartered Institute for Library and Information Professionals (CILIP). The London Manifesto is one more voice in support of a progressive copyright reform, raised in the ongoing European debate on copyright.

The London Manifesto (PDF) defines, in ten points, reforms that are necessary in order to make copyright fair for all stakeholders. These include:

  • Harmonised exceptions: Harmonisation and uniform application of copyright exceptions across all EU member states so that they apply regardless of media or technology.
  • Open norm: The addition of a new “open norm”, an open-ended exception subject to the three-step test, to avoid the current situation where European creativity and research cannot immediately benefit from technological innovations because copyright legislation is slow to catch up.
  • Right to lend: An automatic “right to lend” for libraries, to include the right to lend all digital media, including transferring digital files for a limited period.
  • Right to mine: An automatic right to perform computer analysis of copyright works for libraries, archives or their users whenever they have lawful access to the content. This recognises that the right to read includes the right to mine.
  • Mass digitisation: An automatic right for libraries, archives and museums to mass digitise their commercially unavailable research collections, and give online access across the whole of the EU without liability to compensate rightholders.
  • Standardised terms of protection for copyright: Swift and complete harmonisation of copyright durations across all member states.

The manifesto has been signed by 30 libraries and library associations, research institutions and organisations, including Communia.

The concept of a copyright system fair to all is an important one, and points to the need of more than just a balance of copyright norms. Fairness needs to be secured for all stakeholders, including those who are not in a privileged position in the copyright debate. We treat the manifesto as one more voice that opposes growing pressure from the cultural industry lobbyists, who believe that copyright reform should only serve to strengthen protection and increase financial gains for copyright owners.

Lisbon Council report shows economic value of flexible copyright

Lisbon Council has published the “2015 Intellectual Property and Economic Growth Index”, which aims to provide evidence for impact of different copyright regimes on economic growth. Positive relation between flexible copyright regimes and economic growth, including in the creative sectors, is the main finding of the report.

Paul Keller, from our member organisation Kennisland, has written an opinion about the report. Paul writes that:

[the report] does make one thing very clear: at least in aggregate, broader and more flexible exceptions and limitations to copyright do not undermine the ability of rights holders to generate income from their rights. In addition, countries with more flexible systems fare much better where it comes to growth of their ICT sectors. In other words, adapting the EU copyright rules by making them less restrictive and more flexible will in all likelihood not result in the collapse of the creative industries in the EU. Instead, such a move can be expected to have a positive impact on the economy of the EU.

Paul’s opinion is available on the Kennisland blog. The report is available at Lisbon Council site.

Open letter calls for balanced representation of views in the EuroParl’s IPR Working Group

A balancing of viewpoints and interests in the European copyright debate has been a commonly shared goal since the 2013 “Licenses for Europe” stakeholder dialogue. A key outcome of last year’s EU consultation on copyright has been that the current copyright law is unbalanced – while rights holders and producers are satisfied with the status quo, institutions and end users are not (see are previous post on the matter, “Rightsholders are from Mars, Users are from Venus”).

A reform ensuring a more balanced copyright system will only be achieved, if we conduct a public debate that fairly presents all of the varied and sometimes conflicting viewpoints. The Working Group on IPR and Copyright Reform, led by Jean-Marie Cavada in the JURI Committee, is a key forum for this debate. The group regularly organizes meeting with stakeholders, and it’s invitation track record is far from balanced or neutral. In the last meeting on “Exchange of views on publishing and copyright issues on the digital environment”, the Working Group invited representatives of five rights holders, one library representative and no representatives from end users or intermediaries.

In reaction, a group of 24 organisations (including our association) have signed an open letter to Mr. Cavada, titled “Ensuring Balance” and expressing concern with regard to the lack of diversity of expert speakers and the corresponding representation of views:

“Making copyright rules future-proof requires a holistic approach. This can only be achieved if the full spectrum of stakeholders is adequately represented and given a chance to speak in front of Members of Parliament who will ultimately be tasked with passing new copyright legislation.”

The signatories call on the Working Group to make all views appropriately represented in upcoming meetings.