(With Teresa Nobre).
Last week, the Committee on Culture and Education (CULT) of the European Parliament voted on its final opinion concerning the Commission’s Directive on Copyright in the Digital Single Market. Copyright law in the shape proposed by the CULT MEPs would spell disaster for educators and educational institutions across Europe.
This post aims to provide educators with an overview of the changes to the draft Directive proposed by rapporteur Marc Joulaud, a French MEP from the EPP group, and then through amendments by the members of CULT. We start with an analysis of two clashing logics visible in the CULT debate, followed by an overview of key decisions made during the vote. We finish with advice on next steps in the ongoing fight to secure an educational exception that meets the needs of educators.
If you want to learn more, we have been covering the policy process from the start, with a focus on how the new law will affect educators.
Copyright and education: two clashing views
There are two clashing viewpoints in the ongoing debate on the new educational exception, and each represents a different approach for how to achieve the goals defined by the Commission in its Communication on the DSM strategy and subsequent Directive. These goals include “facilitating new uses in the fields of research and education” and providing a “modernised framework for exceptions and limitations”—which will result in a situation where “teachers and students will be able to take full advantage of digital technologies at all levels of education”.Continue reading
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
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
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
It is Fair Use week, and we have a special guest author sharing about a copyright debate that is considering implementing Fair Use: Delia Browne is National Copyright Director of the Australian National Copyright Unit (Schools and TAFEs). Australia is in the process of re-evaluating its copyright law, including the rules regarding education. The Australian reform offers interesting parallels with the actions in the European Union. We can only wish that a debate on flexible copyright norm was taking place also in Europe.
Like almost all nations, education is crucial to the future economic and social well-being of Australia. These are exciting times for education, but the benefits of the digital era will not be fully realised in our classrooms unless greater flexibility is introduced into our copyright laws. The rules around copyright were designed in the age of the photocopier; these are not working in the age of the iPad and the 3D printer, and are holding back innovation in schools.
The current system isn’t working
Copyright reform is a significant issue for Australian schools, as Australia’s outdated copyright laws currently stand in the way of teachers using the most modern teaching methods in the interests of Australian students. For example: Continue reading
Last week we started discussing the the draft opinion of the Culture and Education Committee of the European Parliament, presented by rapporteur Marc Joulaud. While he rightly points out how unbalanced the proposal is as it ignores many of the most pressing concerns of internet users, he does not help the discussions surrounding the ‘press publishers right’ by introducing a murky non-commercial clause. Today we discuss his amendments for education. In short: it does not spell good news for educational stakeholders. In a move that on the surface aims to provide greater clarity, Joulaud pushes for even stronger reliance on licensing for educational uses. Furthermore, he proposes to make remuneration for digital teaching uses mandatory. We opposed both these changes from the very beginning of the discussion on the scope of the copyright reform.
It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.
Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:
If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.
[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.
This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.
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:
As the copyright reform process continues in Europe, it is worth noting the result of an Indian case concerning photocopying and the extent of the educational exception. In 2012, Delhi University and a small photocopy shop named Rameshwari Photocopy Service were sued by Oxford and Cambridge University Presses together with the Taylor & Francis Group. The publishers alleged that the photocopying of substantial excerpts from their publications and issuing or selling them in course packs infringed their copyrights. They also argued that Delhi University should obtain a license from the Indian Reprographic Rights Organization in order to make the copies.
Publishers lost both the initial court case and the appeal. In what can be seen as a landmark case, the court provided an expansive interpretation of the Indian educational copyright exception. It highlighted issues of educational equity as a central feature of the decision. The Delhi University case is worth considering as we debate copyright and education in Europe. In the ongoing reform, we should focus our efforts on advocating for what a well-functioning education ecosystem requires to promote successful teaching and learning, and less on protecting publishers’ licensing solutions.Continue reading