Last month the notorious EU Parliament vote approved almost all of the worst measures of the proposed Directive on Copyright in the Digital Single Market. It was a significant setback for user rights and the open internet.
Recap: 12th September Parliament vote
The Parliament voted in favor of Article 13, which even though it didn’t mention explicitly, would in practice force online platforms that host significant amounts of user-uploaded works to filter all content for copyrighted materials and prevent the upload of those works unless a license has been agreed to. If the platforms don’t do this, they would be liable for copyright infringements of their users.
They approved Article 11, which gifts a new copyright-like right to press publishers that will allow them to control how we access and reference press publications and news stories online.
The text and data mining provisions of Article 3 pretty much stayed the same, with a mandatory exception carrying through, but only one which can be taken advantage of by not-for-profit research organisations, and only for the more limited scope of scientific research. An optional addendum would permit an expanded exception applicable to all, but only if the rights holders in the underlying works don’t object to it, or arrange their own licensing requirements.
Article 4, the copyright exception for education applying to digital and cross-border teaching activities, while being seriously improved over the Commission version, still contains the fatal flaw that the mandatory exception can be essentially ignored if there is appropriately licensed content made available in a Member State.
To add insult to injury, the Parliament doubled down on their rights giveaway bonanza, approving Article 12a to grant sports events organizers to prohibit anyone from sharing photos or other recordings of sports events. And the new Article 13b requires that image search engines to obtain licenses for even the smallest preview images that they display as search results.
Yesterday, together with our co-signatories Education International and ETUCE, we shared a letter highlighting concerns about the proposed exception for education with the members of the European Parliament.
You can read the full letter here.
We shared suggestions on three main issues that we want to change in the Commission-text on the education exception, which will be the basis of the vote on 12 September:
#1: Support a broad definition of educational establishments
Unfortunately, the European Commission’s proposal does not include all organisations where educational activities take place, as only formal educational establishments are covered by the exception. We note that the European lifelong-learning model underlines the value of informal and non-formal education including continuous professional development conducted in the workplace. This takes place in collaboration with, among others, cultural heritage institutions and NGOs. All these are excluded from the education exception.
We therefore ask members of the European Parliament to support amendments that clarify that all organisations where educational activities, both formal and non-formal, take place are covered by the education exception.
With the EU and other states looking to modernise copyright law for the digital era, education exceptions in copyright law are a hot topic. Particularly, the second paragraph of Article 4 of the proposed directive on Copyright in the Digital Single Market that gives room to educational licenses is being contested by educators, learners, and educational organisations. Canadian copyright law includes the doctrine of “fair dealing” — a unique version of a common exception. The European approach sees legal concepts determined by rightsholders through license agreements. Anxious to protect their position of power, representatives of rightsholders in Europe have often pointed at the Canadian exception as a dangerous example that has negatively impacted the educational publishing industry in Canada. These statements do not hold any merit. The Canadian doctrine offers both a solution to the legal question of how copyright exceptions can be drafted to the benefit of education and should inspire countries around the world who want to improve education exceptions. Continue reading
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.
Tomorrow the Legal Affairs Committee of the European Parliament (JURI) will finally vote on the proposed Copyright in the Digital Single Market proposal. The outcome of this vote will define the European Parliament’s negotiation position as it enters into trilogue negotiations with the European Commission and the Council. Although more than a thousand amendments have been proposed, it is clear that the European Parliament has missed the chance to demand a forward-looking copyright reform that empowers Internet users and creators and improves access to culture and information. With an eye on tomorrow’s votes, these are the three immediate challenges facing the members of the JURI committee:
#1 Save the Internet
For more than a year the discussion in the European Parliament has narrowed down on a number of key topics. The most attention has gone to those areas where the ideas introduced by the European Commission have the potential to break the open Internet and limit freedom of expression and the free access to information. Both Articles 11 and 13 remain hotly contested to this very moment and it is important that you continue to tell the members of the JURI committee to Save Your Internet by voting against the compromise proposals proposed by the Rapporteur, Axel Voss, and support the alternative compromises proposed by the Greens instead.
#2 Expand user rights and protect the Public Domain
On a more positive note there are a number of issues where the JURI MEPs can make a positive difference. The Commission’s proposal was a huge disappointment with regard to empowering users and protecting the Public Domain but members of Parliament have worked hard to put proposals up for vote that would correct this. During tomorrow’s vote the JURI MEPs should vote for the alternative compromise amendments that would introduce Europe-wide exceptions allowing anyone to take and share pictures of artworks located in public spaces (the so-called freedom of panorama) and to use pre-existing works in remixes and other forms of “user generated content”. In addition, MEPs should vote in favor of the compromise amendments on articles 7-9 that strengthen the proposed mechanism that would allow cultural heritage institutions to make available out of commerce works. Lastly, the compromise amendment for article 5 contains a recognition of the principle that reproductions of works in the public domain should stay in the public domain.
#3 Fix the most glaring flaws of the Commission proposal
Finally, there are a number of issues where the Commission’s proposal was severely lacking and where the members of Parliament have not managed to put forward a response that fixes these flaws. As proposed by the European Commission, both the exception for Text and data Mining and the exception for education were at best mixed blessings and, unfortunately, the Parliament has not found a way to fully address their shortcomings.
The proposed optional exception for TDM that applies only if the right has not been reserved does not constitute more than a band-aid on the gaping wound caused by the Commission’s proposal for an limited exception (that, in effect, prevents anyone except researchers from engaging in Text and data mining). Given that there are no more substantial solutions on the table we still encourage MEPs to vote for the compromise amendments on articles 3 and 3a even though we are convinced that the only sensible option is to embrace “the right to read is the right to mine” approach.
With regards to the education exception, the European Parliament’s compromise amendment fails to address the core shortcoming of the Commission’s proposal. The new mandatory exception should improve the very fragmented existing legal framework in the EU and benefit learners and educators alike. Unfortunately, the compromise amendment up for vote tomorrow leaves intact the licensing override that will negate the purpose of having a mandatory exception. We will continue to advocate for limiting reliance on licensing as a method to ensure access to educational materials. It has become clear from our own research that licenses do not benefit education. They impose burdensome obligations on schools and include unfair or even abusive terms.
Time is running out to tell the MEPs in JURI to act. Tell them to back stronger exceptions, safeguard the public domain and save the Internet via saveyourinternet.eu or changecopyright.org now!
Today, COMMUNIA launches the copyrightforeducation.eu website, asking for support for a better copyright for education. Let’s raise our voices and spread the word now, so that we can influence our legislators in creating a better copyright law for education.
What you can find in our new website
We believe in policy decisions that are based on evidence. On copyrightforeducation.eu you can find all the studies that we have been conducting in the past years on the issues of copyright and education:
- Our study that shows that copyright laws in Europe are too fragmented and, thus, lead to inequality among European students, create legal uncertainty for teachers, and limit cross-border collaboration.
- Our study that shows that most of these laws are too narrow, preventing educational activities that take place everyday in schools all over Europe, such as the use of an entire image in an educational resource or the screening of a film in class.
- Our study that shows that licenses restrict the scope of protection of the educational exceptions, grant questionable rights to rightholders and impose burdensome obligations on schools. Therefore, the EU proposal, which prevents copyrighted materials from being used under the education exception from the moment that such materials become easily available in the market under a licence, is a bad solution.
- Documentation showing that educators support a good solution for copyright, in other words, a mandatory exception that cannot be overridden by contracts or licenses, that facilitates cross border use, and does not oblige Member States to provide for remuneration for each and every use of copyrighted materials for educational purposes.
We need to act NOW
A vote will soon take place on the shape of European copyright law. European legislators listen mainly to the voice of copyright rightsholders. We need to change that now.
We are asking for a law that grants educators and learners freedom to use copyrighted content. Educators should not be forced to rely on licenses, which spell new costs and burdens.
Those who teach, learn and create, exchange information for the benefit of European society. They deserve a copyright framework that enables them to provide modern, innovative education. Education fit for the Europe of the 21st century.
Copyright needs to be reshaped in order to facilitate modern education which spans the lives of learners, and takes place in a variety of formal and informal settings, online as well as offline.
European educators and learners need an education exception that is mandatory and cannot be overridden by contracts or licenses.
Educators should not need to be lawyers to understand what they can and cannot do. We believe in transparency. Educators would benefit from an education exception on which educators can rely across the European Union. This would create legal certainty for educators.
What you can do to help
Please visit the website copyrightforeducation.eu and if you support a better copyright for education, act now:
– Reach out to your MEP https://voxscientia.eu/call-to-action/
– Sign up for our newsletter on Education and Copyright
– Contact us at firstname.lastname@example.org
In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we have been attending the 36th session of the Committee, which is taking place in Geneva from 28 May to 1 June 2018.
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):
I’m speaking on behalf of COMMUNIA International Association on the Digital Public Domain.
We would like to start by thanking all the delegates for demonstrating their support for education throughout this SCCR. We would also like to thank the Chair for preparing the Draft Action Plan, and we have 2 suggestions to make regarding the planned actions.
The first is on the typology. We welcome the Chair’s proposal to synthesize, organise and classify the information contained in the study performed by Prof. Seng, and we would be pleased to offer our advice to the Chair in the development of the proposed typology.
At COMMUNIA we have been mapping educational exceptions for several years now, and we have created a template that breaks down the different provisions into their essential elements (users, uses, purposes, works, conditions and preclusions) and shows simple yes/no or 0/1 results, which permit a quick understanding of their differences and similarities. This template was recently updated, in collaboration with PIJIP, to reflect the different provisions analysed by Prof. Seng and could, therefore, be a good reference to the Chair.
The second suggestion regards the study on digital issues. We believe that such a study is only useful if it brings evidence regarding the gags, legal uncertainties and obstacles that may inhibit the development of digital education and research.
For that, the methodology has to go beyond policy and legal analysis. Interviews and surveys involving educators, learners and researchers are essential. Here are a few topics that we would suggest to be included in such study:
- Digital actions carried out by the education and research communities on a regular basis;
- Types of tools, devices and works used for educational and research purposes;
- Restrictions encountered by these stakeholders in relation to different types of digital materials;
- Mechanisms to ensure functioning of exceptions and limitations regarding TPM-protected works;
- Obstacles and uncertainties faced by these stakeholders; and
- Cross-border related problems encountered by these stakeholders.
We recently released our new report “Educational Licences in Europe”, where we analyzed 10 collective agreements in Finland, France, and the United Kingdom. This study shows that educational licences for using copyrighted content in schools include many terms and conditions that restrict users’ rights and that are unfair or unreasonable.
While the small number of agreements analyzed in the study does not allow us to make any safe conclusions with respect to the different licensing schemes, we could not avoid noticing that (some of) the most unfair terms identified in this study are contained in the British licences. And that is interesting to highlight because licences prevail over the teaching exception only in two EU countries: United Kingdom and Ireland (source: IA on the modernization of copyright rules).
One possible explanation for this apparent correlation is that the UK legal framework prevents licensees from refusing licences that contain terms and conditions that will act against their best interests. Educational establishments, or governmental institutions acting on their behalf, are “forced” to accept any licence that is easily available in the market, if they want to continue making the uses that were protected by such exceptions, and that become suddenly covered by the licences. In this context, right holders are “free” to almost unilaterally reshape the terms and conditions of educational uses made under their licences.Continue reading
During the recent high-level conference on copyright in higher education, which we organized with the European Trade Union Committee for Education (ETUCE) and the European Federation of Education Employers (EFEE), we had the pleasure of hosting MEP Alex Voss. It was a rare opportunity for us to hear the rapporteur for the Copyright in the DSM Directive dossier speak about the educational exception. Here is our critical take on this speech, which gives a good sense of how Mr. Voss sees the issue of copyright and education.
Mr. Voss defined the general question as defining “when to pay, and when to use copyright protected works freely”. We believe that we will never have good copyright for education if we see it as just an issue of transfer of funds.
MEP Axel Voss, rapporteur of the draft Directive on copyright in the Digital Single Market, did not expect this dossier to be so controversial. And issues relating to the educational sector are not an exception. With these words, the Eurodeputy began his speech at last week’s high-level conference, “A better copyright for quality higher education and research in Europe and beyond”. The conference was organized jointly in Brussels by the European Trade Union Committee for Education (ETUCE), the European Federation of Education Employers (EFEE) and COMMUNIA Association. The event was for us an opportunity to meet educational stakeholders – including members of our Copyright for Education network, as well as representatives of publishers and CMOs.
Teresa Nobre (Communia Association) and MEP Axel Voss (EPP, Germany), photo Education International, CC BY NC
Licenses are not a solution for education
If we were to choose one thing that worries us the most in the ongoing copyright reform as it relates to education, it would certainly be the possibility of license override. According to the current proposal for the Directive on copyright in Digital Single Market, licences that are easily available in the market can take precedence over the mandatory educational exception.
While this might seem like a way to adjust copyright to national specificity, licensing mechanism will spell new barriers and costs for educational systems across Europe. For countries where educational licenses have not been available to date, this means that there is a possibility that schools will have to pay for materials that have been available to them for free. But educational licenses are not just a matter of money. Continue reading