Today, at the 35th session of the WIPO Standing Committee on Copyright and Related Rights, Professor Daniel Seng presented his Updated Study and Additional Analysis of Study on Copyright Limitations and Exceptions for Educational (SCCR/35/5 REV).
Communia is a permanent observer of the Committee, and the following questions were made by me on its behalf:
Good morning, ladies and gentleman.
I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.
We would like to thank the Secretariat for arranging for the update and expansion of the study on educational exceptions, and Professor Seng for conducting such study.
We have a few questions for Professor Seng regarding flexibilities, limitations and exceptions to TPM protection in the context of education.
According to your study, about 60% of WIPO Member States do not provide for flexibilities, limitations and exceptions to the protection of technological protection measures. Those findings are very concerning because, according to an impact assessment study conducted by the European Commission in 2016, technological restrictions are the most frequently encountered copyright-related obstacle by users of digital works in education: 31,2% of educators and 36,9% of learners stated that they “are not able to access, download, use or modify a digital work because of technological protection”.
When anti-circumvention laws were drafted at the international level, they were expected to protect TPMs insofar as they restricted acts not authorized by rightsholders. My first question to is if you think that this international legal framework permits users from circumventing technological measures when their aim is to exert their legal rights under the copyright exceptions, and if you believe that it would be appropriate for national laws to allow users to circumvent technological measures in order to exert their rights under educational exceptions?
My second question concerns Member States that do not allow circumvention. In the impact assessment study that I mentioned, mechanisms available to end-users to enforce their rights to use TPM-protected works, without circumventing the TPMs, were only identified in 8 EU countries, which means that 20 EU countries are doing nothing to ensure that their teachers and students can enjoy their rights under national copyright exceptions. Furthermore, even where such mechanisms exist, they can be very burdensome. In Germany, Spain and Sweden it is necessary to go to court to get access to the TPM-protected work. In France, Italy, and the United Kingdom, it is necessary to file a complaint with the relevant authorities or open a mediation procedure.
So, my second question to you is: what are the mechanisms available to teachers and students to enforce their rights to use TPM-protected works in those Member States that do not permit the circumvention of the TPMs?
Finally, I would like to know which country do you think has the most adequate provisions to ensure that beneficiaries of exceptions and limitations for educational purposes can legitimately access and use TPM-protected works?
In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 35th session of the Committee, which is taking place in Geneva from 13 to 17 November 2017.
The following is the statement made by Teresa Nobre on our behalf on agenda item 7: Limitations and exceptions for educational and research institutions and for persons with other disabilities.
The European Union is currently discussing a reform of its copyright system, including making mandatory certain copyright exceptions, in order to introduce a balance into the system. However, no one, except Julia Reda, is paying any attention to one of the biggest obstacles to the enforcement of copyright exceptions in the digital age: technological protection measures (TPM), including digital rights management (DRM). In this blogpost we will present the reasons why the European Parliament should not lose this opportunity to discuss a reform of the EU anti-circumvention rules.
No balance between anti-circumvention prohibitions and users rights
The InfoSoc Directive incorporates rules regarding the protection of TPM in articles 6 and 7, which do not adequately take into account users rights created by copyright exceptions and limitations. First, Member States are only obliged to guarantee that users can access and use a TPM-protected work in relation to a closed-list of “privileged exceptions”. Beneficiaries of the remaining exceptions are not able to exercise their rights when a work is protected by TPM. Second, only certain privileged users—those who already have legal access to the work—have the right to require the technical means to benefit from the selected exceptions. Finally, the rules that are aimed to protect users do not apply to on-demand online services.
According to the European Parliament’s 2015 impact assessment study, the EU anti-circumvention rules are intend to restrict the exercise of users rights under the exceptions:
The very narrow scope of application of this mechanism evidences a clear intent of the InfoSoc Directive to restrict considerably the enforcement of copyright exceptions in light of their increased economic impact in the new electronic environment (cf. Recital 44). (pg. I-84)
As reported last week, the voting of the Internal Market Committee on the Draft Opinion on the proposed DSM Directive was full of plot twists, but none related to the issue of education. The Committee adopted its compromise amendment to article 4 and it was applauded by many, since this amendment offers a better solution to the obstacles faced by educators and learners across Europe than the Commission’s proposal. Yet, the educational exception resulting from this compromise is still not suitable to the modern needs of educators and learners across Europe.
Giving preference to new licenses is always a bad idea
The IMCO amended article 4(2) in order to give precedence only to extended collective licensing (ECL) schemes. This shows appreciation of the weak position of educational institutions to negotiate individual licenses, and thus represents a progress in relation to the Commission’s proposal. However, it’s not enough to guarantee that the new exception will not simply be replaced by ECL schemes all over Europe.
The ECL schemes have been in existence in the Nordic countries for a long time now, and there’s a general understanding that they have to be protected in those countries. We cannot overemphasize the fact that the term “limitation” in article 4(1) encompasses compulsory or statutory licenses. On the other hand, works of authors that opt out from voluntary licenses will fall under the exception anyway. In other words, maintaining article 4(2) is not that relevant.
What policy makers that want to protect the public interest related to education should worry about is that ECL may be exported to countries with no tradition whatsoever of implementing such schemes. These are also countries which currently do not foresee any compensation for most or all of the uses made under their educational exceptions. They might be forced to introduced compensation, based on the proposed law.Continue reading
Today we publish the findings of a new study carried out by Teresa Nobre that intends to demonstrate the impact exerted by narrow educational exceptions in everyday practices. She accomplishes this purpose by analysing 15 educational scenarios involving the use of protected materials under the copyright laws of 15 European countries: the Czech Republic, Denmark, Estonia, Finland, France, Germany, Italy, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Spain and the United Kingdom.
Almost no case law was analysed, and uses permitted under licenses, namely extended collective licenses, are not indicated here. Thus, the study does not give a detailed picture of all the countries under analysis.
Materials available for educational uses
This study confirms what we have known for a long time: that not all copyrighted works are treated equally in the context of education. Some educational exceptions exclude the use of certain types of works (textbooks and academic books in France and Germany, dramatic works and cinematographic works in Denmark and Finland and musical scores in France and Spain). Other laws contain restrictions in relation to the extent or degree to which a work can be used for educational purposes, thus creating obstacles to the use of entire works, namely short works (e.g. individual articles, short videos and short poems) and images (e.g. artworks, photographs and other visual works).
For several months now, we have been arguing that ‘the devil is in the detail’ when it comes to the Commission’s education proposal. MEP Therese Comodini Cachia draft amendments to the proposed exception for digital and cross-border teaching activities, while introducing some improvements, do not meet the educational community expectations to see a better copyright reform. And, worst still, they represent a serious step back in relation to the existing EU acquis in the area of educational exceptions.
The licensing fight continues
We appreciate MEP Comodini efforts to mitigate the negative impact of article 4(2), which allows Member States to give precedence to licenses over the proposed exception. However, we believe she misses the opportunity of getting rid of the Commission’s infamous proposal, while still protecting the extended collective licensing (ECL) schemes that exist in the Nordic countries.
Under the Commission’s proposal, any licensing offer could rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception. MEP Comodini seems to recognize that many educational institutions would be ill-placed to negotiate license terms or would be forced to accept the terms dictated by the licensor, and thus introduced some substantial changes to article 4(2). Under Ms. Comodini’s proposal, the unilateral and discretionary offer of the rightholder to conclude a licensing agreement is not sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation is needed to override the exception.Continue reading
Today we are publishing the first in a series of position papers dealing with the various parts of the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Today’s paper deals with the Commission’s proposal to introduce a mandatory exception that would allow a limited number of beneficiaries to use works and other subject-matter “in digital and cross-border teaching activities” (you can download a pdf version of the paper here). From our perspective the proposal, while well intended, is a missed opportunity to provide the robust education exception that educators, students and everyone else engaging in educational activities, both online and offline, needs. For this reason the paper argues for the introduction of a mandatory exception for educational purposes that does not primarily focus on the type of person or institution doing the teaching, but rather on the educational purpose of the use, and that cannot be excluded by Member States if licensed content is available.
Position paper: Better Copyright Reform for Education
Exceptions and limitations to copyright for education should support necessary access and re-use of copyrighted content of all types in a variety of education settings, locally and across borders. Copyright needs to be reshaped to be fit for modern education—which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as off. In this context, exceptions and limitations should promote positive learning outcomes, and the rights of copyright owners should be balanced with the public interest. We also need to reduce legal uncertainty faced by educators that use copyrighted content.
What is proposed in the directive?
In the Proposal for a Directive on Copyright in the Digital Single Market, the European Commission proposes to introduce a mandatory exception or limitation to copyright for educational purposes. The exception only covers the acts of reproduction, communication to the public, and making available to the public of protected works and other subject matter made in the context of a digital use. The digital uses have to be made for the sole purpose of illustration for teaching. Recital 16 clarifies that all digital uses that “support, enrich or complement the teaching, including the related learning activities” are covered.
The exception is intended solely for activities “carried out under the responsibility of educational establishments”. The uses allowed must (1) take place on the premises of the establishment or (2) through the establishment’s secure electronic network, accessible only by its teachers and learners. The concept of educational establishment is not defined, but Recital 15 states that “all educational establishments in primary, secondary, vocational and higher education to the extent they pursue their educational activity for a non-commercial purpose” are covered. The noncommercial nature of the activity is a condition of the use, however “[t]he organisational structure and the means of funding of an educational establishment are not the decisive factors” to assess that. Continue reading