Author Archives: Teresa Nobre

Germany sets bad example with the proposed implementation of the new education exception

De verzoeking van Adam en Eva in het paradijs,
A dangerous precedent for user rights
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A few weeks ago, the German government shared its proposal for the implementation of some of the provisions of the new Copyright in the Digital Single Market Directive, including the new EU education exception (Article 5 in the final version of the Directive).

Similarly to what we did with the Dutch proposal, we will provide here an overview of the German proposal to implement locally the new exception. This is part of our effort to track how countries across Europe implement this mandatory exception to copyright for educational purposes.

What changes are introduced to the existing legal framework in Germany?

Germany proposes to implement the new educational exception through an amendment to the existing education exception in Section 60a of the Act on Copyright and Related Rights (see English version here). 

The current exception covers all relevant, digital and non-digital, educational activities undertaken by educational establishments for non-commercial purposes. The exception is technologically neutral and allows the educational establishment’s teachers and students to hold activities in any venues. However, it sets quantity limitations (save for illustrations, isolated articles from the same professional or scientific journal, small-scale works or out-of-commerce works, which can be used in their entirety, the exception only allows the use of up to 15% of a work) and it excludes specific uses of certain types of materials from the scope of the exception, most notably materials exclusively intended for teaching in schools and sheet music. Furthermore, most uses are subject to the payment of compensation to the rightholders.

Under the new proposal, the scope of the education exception would be practically the same. The main difference is that the exclusion of specific uses of certain types of materials would be conditioned to the existence of licenses (easily available in the market and covering the needs and specificities of educational establishments) authorizing those uses. In other words, if such licenses do not exist, then those uses can be made under the exception. 

What is the main flaw of Germany’s proposal?

The main flaw of the proposed education exception is to give preference to licensing offers over the educational exception, with respect to specific uses of certain types of materials, taking away the educators and the learners right to make those uses under the exception as soon as copyright owners start selling licences for said uses.Continue reading →

Implementing the new EU press publishers’ right

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the new exclusive right granted to EU press publishers by the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 15, authored by Timothy Vollmer, Teresa Nobre and Dimitar Dimitrov.Continue reading →

Implementing the new EU provision that protects the public domain

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provision in the new Copyright Directive that ensures that faithful reproductions of public domain works of visual art cannot be subject to exclusive rights.

For a detailed analysis, please read Communia’s guide on Article 14, authored by Paul Keller, Teresa Nobre and Dimitar Dimitrov.Continue reading →

Implementing the new EU provisions that allow the use of out-of-commerce works

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Last week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that allow cultural heritage institutions to digitise and make out of commerce works in their collections available online.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller. Continue reading →

Implementing the new EU protections against contractual and technological overrides of copyright exceptions

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory provisions in the new Copyright Directive that prevent contractual and technological overriding of some of the new copyright exceptions.

For a detailed analysis, please read Communia’s guide on Article 7, authored by Teresa Nobre and Natalia Mileszyk. Continue reading →

Implementing the new EU exception for preservation of cultural heritage

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for preservation of cultural heritage contained in the new Copyright Directive.

For a detailed analysis, please read IFLA and Communia’s guide on Article 6, authored by Stephen Wyber. Continue reading →

Implementing the new EU exception for digital and cross-border education

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This week, we launched our Guidelines for the Implementation of the DSM Directive. This is part of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the mandatory exception for digital and cross-border education contained in the new Copyright Directive.

For a detailed analysis, please read Communia’s guide on Article 5, authored by Teresa Nobre. Continue reading →

Implementing the new EU exceptions for text and data mining

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Yesterday, we launched our Guidelines for the Implementation of the DSM Directive. This is the first of a series of blogposts dedicated to the various provisions analysed in our guidelines. Today we give a quick explanation of the two mandatory exceptions for text and data mining contained in the new Copyright Directive.

For a detailed analysis, please read LIBER and Communia’s guide on Articles 3 and 4, authored by Benjamin White and Maja Bogataj Jančič. Continue reading →

SCCR/38: Communia General Statement on Exceptions and Limitations

Karikatuur van Franse censoren
Minimum access and use rights should be defined by public rules
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In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights (SCCR), we are attending the 38th session of the Committee, which is taking place in Geneva from 1 to 5 April 2019.

The following is the general statement made today by Teresa Nobre on Limitations and Exceptions (Agenda Items 7 and 8):

I’m speaking on behalf of COMMUNIA, an international association that works to protect and strengthen the public domain and users’ rights.

We believe that there is a minimum set of access and use rights that should be defined by public rules, since they are justified by public interests. If copyright laws do not grant to the education and research communities, the cultural heritage institutions, and the persons with disabilities the same level of protection that is granted to rightsholders, and defer to private agreements the regulation of all uses of copyrighted materials, they perpetuate an unbalanced power structure and let rightsholders weaken or undermine what should be a public policy decision.

Private agreements are important in any market, but they should coexist with – and not replace – exceptions. Agreements are not appropriate to harmonize the legal framework for uses of copyrighted works, because the terms and conditions of licenses vary widely, and they are not available for every material in every country. There are countless copyrighted works in existence and the large majority of creators is not interested in licensing their works (only a small class of professional creators is offering their works for licensing). Thus, it is impossible to offer meaningful solutions to users through private agreements only.

In order to have a minimum set of rules that are applied uniformly by every Member State and have a cross-border effect we need an international law.

The ongoing reform in the European Union should be enough for this forum to understand that agreeing on minimum standards is possible, while still taking into account local specificities.

Thank you.

Continue reading →

The education exception was gutted during the Trilogues

A dragon devouring the companions of Cadmus
Article 4: attacked through the recitals
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When the European Commission proposed to grant the same minimum rights for digital educational activities in every EU Member State, we applauded the initiative. The proposal had flaws, but there was room for public discussion at the European Parliament, which could have led to an improvement of the proposal. Unfortunately, the improvements introduced by the Parliament were gutted during the trilogue debates, which were conducted behind closed doors.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.Continue reading →