This morning the Legal Affairs Committee of the European Parliament (JURI) voted on the report on the proposed Copyright in the Digital Single Market Directive. You can read a broader analysis here.
JURI gave educators across the EU a gift in the shape of an improved educational exception – with a poison pill inside. The Compromise Amendment (CAM6) proposed by Rapporteur Voss was accepted. We are happy that the Commission’s flawed proposal for an exception that secures digital uses for education purposes has been fixed. Educators are given clarity about uses in digital environments, and the scope of the exception has been increased beyond educational establishments and their premises. There is also improved text that makes a contractual override of the exception impossible.
Yet, the poison pill remains: the Commission’s proposal in article 4(2) to give priority to licenses over the exception was adopted. We managed to secure improvement in the phrasing of this license priority: the licenses have to be tailored to the needs and specificities of the educational establishments. Nevertheless, a Member State can decide to switch off the exception, provided that a licensing scheme is in place in a given country. This means that over the coming years we could benefit from a new exception only to see it disappear – which would leave educators depending on remunerated licensing schemes.
Problems with license priority go beyond education
Licensing priority spells problems, not just for educators. It creates a precedent for overrides to any public interest copyright law exceptions. As such, it is a great victory for rightsholders. This reminds us of the “Licenses of Europe” process, in which the Commission and rightsholders tried to convince everyone that licensing is a much better tool for securing user rights than exceptions to copyright. While they failed to do so then, they seem to have won some ground in the copyright directive.
This dangerous precedent for users’ rights is even more alarming when we consider that it goes against the CJEU ruling on the issue of license priority. The Court of Justice of the European Union knew that giving priority to license offers was indefensible, as it would negate much of the substance and effectiveness of the exception or limitation and it would deny the user the right to benefit from the exception. Thus, the Court decided that the 3-step test did not require them to allow rightsholders to unilaterally force users to stop relying on the copyright exception when those rightsholders offered to conclude a licensing agreement with them. This decision represented a major win for users’ rights, and more so because in the US users may not be able to rely on fair use when reasonable licensing options are available.
If we round up today’s vote for education we are happy about the improvements to the exception but mourn what could have been and fear the consequences of this license priority. The fight is not over yet. There will possibly – likely – be a plenary vote in the Parliament where this article, as well as the other disappointing results on articles 11 & 13, could still be challenged.
Last Wednesday, June 21st, COMMUNIA organised an event in the European Parliament, hosted by MEP Marietje Schaake (ALDE) on copyright reform for education. We wanted to share one important voice often overlooked in the copyright reform, that of the educator. What is the type of copyright exception that we need to support 21st century education? We heard from practitioners, experts and policymakers during the event.
After an introduction by Marietje Schaake and moderator Lisette Kalshoven, we officially presented the results of the RIGHTCOPYRIGHT campaign to MEP Schaake. As Alek Tarkowski noted:
“In the copyright reform debate, we tend to see copyright as a core issue. For educators, copyright is a tool – or a barrier – to attaining educational goals. We should not forget this.”
Over 4800 people have supported the petition for a better copyright reform for education to date, and we hope MEP’s will listen to their demands.
What we can’t let educators share
Next we heard from Hans deFour, founder of KlasCement a very successful online educational resources platform in Belgium. More than 70.000 educators from Flanders are members, which means almost 50% of educators in primary, secondary and special education. Continue reading
We welcome the positive sound that MEP Stihler’s draft opinion for the Committee on the Internal Market and Consumer Protection (IMCO) brings to the copyright debate. She proposes to broaden the TDM exception to a level of ‘right to right is the right to mine’, hears the clear call from the cultural heritage institutions to fulfill their public task of providing (online) access to culture, and proposes to delete the unsubstantiated article 11 of the proposed directive on copyright in the Digital Single Market.
For education, the Scottish MEP has aims that strongly resonate with us, as she noted in her introduction:
Also, in the field of the use of works and other subject matter in teaching activities (Article 4), the Rapporteur believes that the exception should benefit not only all formal educational establishments in primary, secondary, vocational and higher education, but also other organisations such as libraries and other cultural heritage institutions, providing non-formal or informal education. The Rapporteur believes that the best solution is to have a single and mandatory exception for all types of teaching, both digital and non-digital, formal and informal.
These are more-or-less the same points we make in our position paper on the draft directive. In it, we argue that ‘the devil is in the detail’. The analysis of MEP Stihler’s proposed amendments appears to require the same title. While we can do less than fully applaud her aims, there is some serious room for improvement in the actual proposed text. We appreciate amendments that strengthen the exception, but note at the same time that even the best exception will be broken if licensing solutions are favored by the legislator. Continue reading
Yesterday COMMUNIA sent a joint letter to MEPs working on the copyright reform dossier. It is supported by 34 organisations and 17 individuals, all advocates of quality education. In the letter we note our concerns on the phrasing of a new education exception to copyright, as included in the proposal for a directive on copyright in the Digital Single Market.
You can find the full letter, including signatories here.
We believe that educators should be provided with the autonomy necessary for them to give the best possible learning opportunities for students, and that students and other learners should have the freedom required for effective independent learning. The choice of resources that an educator uses should only be dependent on the need they see in their students. The current proposal from the European Commission does not meet these requirements. There however changes possible to the proposed directive that will create a copyright that supports education.
We have shared three concrete recommendations:
Update February 7th 2017: We have now closed our call for signatories and have updated the supporting organisations and individuals list in the post below. Thanks again for the big support for this call for a better copyright reform for education.
COMMUNIA, together with other advocates of quality education in Europe, has developed a letter to members of the European Parliament. In the letter we express our concerns that the proposed directive on copyright in the Digital Single Market will make things worse for education. We make recommendations that would help copyright transform into copyright fit for modern, quality, and inclusive education and ask for amendments in line with these recommendations. Please read the full letter here.
Help us in supporting a better copyright for education
We want to gather wide support, so that we can impact the current copyright proposal. If you personally or your organisation wants to sign the letter, contact Lisette Kalshoven (email@example.com). We accept additional signatories until February 6th 12:00 CET. We thank you for your support.
Right now the letter is supported by the following organisations: Continue reading
On his blog just before Christmas, Vice President Ansip made a case for a simple copyright law for education to help Europe’s teachers and students. While we can only support a simple copyright law that supports education instead of making it harder for educators to teach, the Commission did not propose such a solution in the directive. The Commission has limited the new exception to official ‘educational establishments’ and has written a preference for licenses over the exception in the text. By doing so they are leaving important parts of education behind.
Leaving important players behind
Ansip writes about the important transition from solely physical education to embracing digital technologies. In the process, the patchwork of exceptions to copyright for educational purposes across Europe blocks much innovation in education:
Unfortunately, there are many differences around Europe in how these exceptions are applied, especially when it comes to using copyright-protected material in digital or online teaching activities.
Digital technologies are transforming the teaching and learning environment. They are being used more and more throughout education: laptops in the classroom to show video clips, interactive whiteboards to display webpages, for example.
But current EU law does not properly address digital’s significant presence and influence in the learning environment. It needs to catch up.
This makes it strange that the Commission’s definition of ‘learning environment’ is so limited to official educational establishments in the proposed directive. Education is understood today as a lifelong process that is conducted by a multitude of institutions, and even learners themselves. This was noted in the Commission Communication ”Making a European Area of Lifelong Learning a Reality” and the subsequent Council Resolution of 27 June 2002 on lifelong learning. Yet, when defining copyright law, the European Commission fails to embrace its own lifelong learning approach by limiting the potential beneficiaries of the proposed exception to ‘educational establishments’.
In doing so, the proposed exception will leave unharmonised the digital uses for educational purposes made by other individuals and organisations, such as the great value that museums, libraries, archives, professional associations, and civil society organisations give to education. Think for example of education about the dangers of drugs that civil society organisations provide for teenagers, or the great educational programmes of libraries that help Europeans embrace their local culture. This limitation would also exclude employees, apprenticeships and practical learning as vocational education at their company, which is a key part of Europe’s lifelong learning goal.
Can we make copyright serve users better? We asked several copyright policy experts from civil society organisations for their view on the current copyright reform: what are the biggest hopes, the biggest fears and their concrete plans to improve the current copyright regime to fit our digital society? Film maker Sebastiaan ter Burg created the video below to share their answers:
The video was recorded during the event Copyright Reform: Unlocking copyright for users co-organised by COMMUNIA and EDRi and co-hosted by MEPs Therese Comodini Cachia and Carlos Zorrinho.
We would like to thank Diego Naranjo (Edri), Raegan MacDonald (Mozilla), Dimitar Parvanov Dimitrov (Wikimedia), Ruth Coustick-Deal (OpenMedia), Till Kreutzer (IGEL) and Gwen Franck (Creative Commons) for their contribution to this video.
This week COMMUNIA founding member Kennisland launched CopyrightExceptions.eu, a website that collects information related to the national implementation of 22 exceptions and limitations to copyright in the EU Member States. CopyrightExceptions.eu provides much needed clarity of the current patchwork state of implementations of the exceptions open to Member States.
Exceptions represent the user rights in EU copyright
While over the years a number of studies have been undertaken to provide insight into the state of implementation of the possible exceptions, there was no easily accessible, up-to-date information resource about user rights across the European Union. In the past few months Kennisland collected and combined the information it could find from multiple sources and had the results reviewed by national experts. Information was gathered about whether an exception is implemented and whether the exception requires remuneration. The tool also includes links to national acts and any other comments on the specifics of the implementation.
User rights are not looking good
While the Commission, based on the recently leaked impact assessment and dito draft directive, aims to solve parts of this non-user friendly patchwork, it is not looking good. The draft directive provides for only a limited TDM exception that will scare away data start ups, and strange licensing requirements in a new additional exception for education. It also doesn’t do much to harmonise important exceptions for the daily lives of citizens (such as freedom of panorama), or cultural heritage institutions (to make out-of-commerce works available). We don’t feel that the forthcoming directive will at all champion a true ‘Digital Single European Market’.
Kennisland, and COMMUNIA with them, believes that a single market means that we need to ensure that all participants in that market have the same rights: rights of creators and rights of the user, and equal in all member states. The directives unfortunately do not require the same harmonisation for user rights as it provides to rights holders.
We need a better harmonised copyright for users in Europe, and we urge you to use CopyrightExceptions.eu to experience for yourself how diverse the landscape of exceptions is, and how far we still have to go.
In anticipation of the EU Commission’s copyright reform proposal (and just in time for the confirmation that the Commission’s plans will be everything but forward-looking), our friends at Mozilla have launched a new copyright reform campaign. They are taking this step because “it’s time our laws caught up with our technology.”
The campaign focusses on issues which have traditionally been dear to Mozilla, such as online learning, creative expression and innovation. Therefore, the three main strands where Mozilla wants to see an update of the current EU copyright rules (our summary) are:
- Update EU copyright law for the 21st century The EU’s current copyright laws were passed in 2001, before most of us had smartphones. We need to update and harmonise the rules to create room to tinker, create, share, and learn on the Internet. Education, parody, panorama, remix, and analysis shouldn’t be unlawful.
- Build in openness and flexibility to foster innovation and creativity Copyrighted works are remixed, reimagined, and reused in new and creative ways every day. These elements build on existing ideas in a way that breathes new meaning into old content.
- Don’t break the Internet Some people are calling for licensing fees and restrictions on Internet companies for basic things like creating hyperlinks or uploading content. Others are calling for new laws that would mandate monitoring and filtering online. These changes would establish gatekeepers and barriers to entry online, and would risk undermining the Internet as a platform for economic growth and free expression.
Sign the petition!
All of these issues are ignored by the leaked Commission’s Impact Assessment. This makes Mozilla’s campaign timely and relevant. We fully agree with Mozilla’s efforts to update and fix copyright and urge you to take a look at the Mozilla Campaign and sign the petition.
We happily invite you to the event Copyright Reform: Unlocking copyright for users? that will take place on September 8 in Brussels. The event is hosted by MEP Therese Comodini Cachia and MEP Carlos Zorrinho, and co-organised by COMMUNIA and EDRi.
Join us to discuss key aspects of the current EU copyright reform including the freedom to use copyrighted works (exceptions and limitations) as well as some of the failures of the existing legal framework (copyfails). After the event we invite you to lunch in Jan 3q Brasserie.
Copyright Reform: Unlocking copyright for users? – agenda
11:15 – 11:20 Introduction
Anna Mazgal, Communia
11:20 – 11:25 Welcome
MEP Therese Comodini Cachia (EPP)
11:25 – 11:35 How to understand the L&E practice better?
Launch of copyrightexceptions.eu – Maarten Zeinstra, Kennisland
11:35 – 11:45 What doesn’t work?
The #copyfails and ways out of the copy mess – Diego Naranjo, EDRi
11:45 – 11:55 What works?
Presentation of the Best Case Studies – Teresa Nobre, Communia
11:55 – 13:00 Questions and discussion
facilitated by Anna Mazgal, Communia
13:00 – 13:05 Commentary
MEP Carlos Zorrinho (PASD)
13:05 – 13:15 Closing remarks
MEP Therese Comodini Cachia (EPP)
13:15 – 14:00 Lunch
Brasserie Jan 3q Continue reading