Copyright and education: new approach for the time of the pandemic

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Do we need a new approach to copyright, as it applies to education? What has the pandemic changed? We will ask these questions during a Copyright for Education online event this Thursday, 29th of October).The session is co-organised with our member, Centrum Cyfrowe and is part of this year’s Open Education Policy Forum.

The Copyright for Education online event will take place on Thursday, 29th of October, at 13.00-14.15 UTC. You can register for the event here. Registered participants will receive a Zoom link on the day of the event.

We are inviting to this session educators, copyright scholars, activists and educational stakeholders. Our speakers include Meredith Jacob (PIJIP / Creative Commons USA, USA), Teresa Nobre (Communia Association, Portugal) and Allan Rocha de Souza (UFRRJ, Brazil) and will be moderated by Alek Tarkowski (Communia / Centrum Cyfrowe Foundation, Poland).

Debates about copyright reform, as seen from the perspective of educational stakeholders, often concern adjusting the law to the requirements of digital education. During the pandemic, we all experienced a sudden shift to digital, remote education. Did current copyright law prove to be fit for purpose, or did it become an obstacle to teaching and learning? What kind of copyright law do we require to support resilient education during the ongoing pandemic?

In this session, we want to highlight the growing importance of strong educational exceptions that are necessary for effective and resilient remote education. Our speakers will present perspectives from around the world and cases of different educational contexts and legal systems. We will also discuss ongoing legislative processes – such as the implementation of the new European Copyright Directive or ongoing policy debates at WIPO.

New policy paper on fundamental rights as a limit to copyright during emergencies

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Adjusting essential uses to new modes of living
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Today, Communia released a policy paper on fundamental rights as a limit to copyright during emergencies. This policy paper has been prepared in the context of the COVID-19 pandemic, which has caused a massive disruption of the normal organization of society in many EU countries. 

In our paper we defend that, in order to transpose education, research and other public interest activities from public locations to private homes during government-imposed lockdowns, we need to be able to rely on the understanding that fundamental rights can, in exceptional situations, function as an external limit to our national copyright systems.

The main conclusions of our paper are the following:

First Conclusion

The educational and research exceptions and limitations provided for in Article 5(3)(a) of the InfoSoc Directive and in Articles 6(2)(b) and 9(b) of the Database Directive, and the public lending exception provided for in Article 6(1) of the EU Rental and Lending Rights Directive are mandatory for Member States, due to the fundamental rights that they internalize, namely those enshrined in Articles 11(1), 13 and 14(1) of the EU Charter of Fundamental Rights.Continue reading →

Copyright Directive – Implementation – March news

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We have yet to see how the pandemic will affect the calendar
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The implementation of the copyright directive is ongoing in several countries, which might be a challenge due to the pandemic (e.g. to hold face-to-face events and meetings) or an opportunity (e.g. some officers working on copyright issues might have more time to focus on it). In the meantime, several EU member states decided to ask the Commission to adjust its calendar of infringement decisions and to suspend the deadlines relating to the pending infringement procedures. We have yet to see how the pandemic will affect the calendar of ongoing implementations.

EU implementation – country updates from last month

Sweden

The Swedish Ministry of Justice recently closed the public consultation on the implementation of Articles 3 to 12 of the Copyright Directive. The Ministry shared a document containing only the opening remarks on how those Articles should be assessed and implemented (according to the officers at the ministry) and the deadline for submitting opinions on those positions ended on 20 March. The document shared by the Ministry of Justice as a part of the public consultation is not the official position of the Swedish Government. The memo serves as a starting point for discussions about the directive and includes a number of questions regarding the articles for the stakeholders involved. 

France

The French audiovisual reform, which transposes the Audiovisual Media Services (AVMS) Directive, as well as Article 17 of the Copyright Directive, was subject to discussion and voting in the National Assembly’s Culture and Education (CULT) Committee, on the first week of March. The CULT Committee worked its way through 1.327 amendments to the proposal. On 5 March, the CULT Committee finalized this effort and approved the amended text. The approved text, in what concerns the implementation of Article 17, is not substantially different from the original proposal that we analyzed here. The text is now scheduled to be discussed in the Assembly’s Plenary session at the beginning of April. The relevant documents will be made available here. Continue reading →

What we hope for WIPO under new leadership: neutrality, fairness, and transparency

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Improve the quality of policy making at WIPO
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Last week, the World Intellectual Property Organization (WIPO) nominated a new Director General, Daren Tang, who will assume the post on 1 October 2020. Tang is currently the Chief Executive of the Intellectual Property Office of Singapore and has served as the Chair of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) for the past six bi-annual meetings of the committee. 

A growing number of civil society organizations working on copyright reform, including Communia and its members Wikimedia and Creative Commons, participate as permanent observers in the SCCR, for the committee addresses several important issues in the field of copyright. This includes a potential new treaty for the protection of broadcasting organizations; exceptions and limitations to copyright for libraries, museums, archives, educational and research institutions, and persons with other disabilities; and the broader topic of copyright and the changing digital environment. 

WIPO has the potential to affect norm setting in a variety of topics in the field of copyright, not only those currently discussed in the SCCR, but also others that WIPO may introduce via its training and capacity-building activities. In fact, although WIPO is a member state-driven institution and only its 192 country members can decide on the adoption of binding legal instruments or soft laws, the Director General and his senior management team can influence the direction of national law and policy reforms in developing countries through the organization’s technical assistance program.

The impact of the WIPO Secretariat on the work of the copyright committee

The WIPO Secretariat also has a significant impact on the work of the SCCR. In the past year, we have witnessed that it is fairly easy to prejudge the outcomes of an Action Plan on Limitations and Exceptions adopted by the WIPO member states if the WIPO Secretariat carries out the activities foreseen in such a plan in a manner that puts an over-emphasis on the private interests of copyright owners to the detriment of the public interests related with access to knowledge and education. 

Regional events intended to identify “areas for action with respect to the limitations and exceptions regime” can easily be turned into lobbying platforms for copyright owners, if ill-designed. Would-be beneficiaries of the limitations and exceptions regime can easily be prevented from sharing their experiences in such events in a structured manner, if no formal speaking roles are given to them. Furthermore, an international conference intended to discuss limitations and exceptions for cultural heritage and educational and research institutions can be organized in such a manner that the panels are dominated by rights holders and collective management organizations, preventing a fair and balanced discussion on the issues at hand. Continue reading →

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

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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 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 →

SCCR/39: COMMUNIA Statement on Limitations and Exceptions

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Individual laws cannot fix cross-border uses
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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 39th session of the Committee, which is taking place in Geneva from 21 to 25 October 2019.

The following is the opening statement made on behalf of COMMUNIA on limitations and exceptions (agenda items 5 and 6):

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

We would like to start by thanking WIPO for advancing the work on the Action Plans and for convening the regional and international events. Although we would have appreciated if these events would have provided space for more practitioners to share their concerns, in order to ensure a better representation of all stakeholders, we are pleased to see that there was wide agreement as to the need to have exceptions to support public interest activities.

We understand that some Member States believe these exceptions shall be designed solely at a national level. At the events that took place this year there was not always a chance for the participants to engage in discussions of international solutions, and that might be misunderstood as a lack of will to work towards such solutions. However, we have heard today many countries saying they do want WIPO to act.

Let’s not forget that individual solutions cannot provide an adequate framework for uses that take place online and across borders. Without an international solution, educators, researchers and other practitioners will continue facing obstacles when working together in various countries at the same time, which is something they do on a daily basis.

Finally, we would like to highlight that we agree with the understanding that exceptions and licensing-solutions should coexist. We believe that a balanced copyright system is able to protect fundamental needs through exceptions, while still leaving plenty of space to rightholders to license uses that go beyond those needs. One does not, and should not, replace the other. Rightholders and civil society members seem to agree on that basic principle, despite their divergences. What we need now is to have Member States reassuring these groups that it is possible to protect both interests, without nullifying exceptions through licenses and without exempting uses that would have an unjustified market impact.

This being said, we urge this committee to continue discussions towards a binding international solution.

The Netherlands leads way with implementation of the new educational exception

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Simple implementation, without the license override mechanism
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Just one month after the new Copyright in the Digital Single Market Directive went into force, the Dutch government has shared their proposal for its implementation, through an amendment of their existing copyright law. The proposal is currently in a public consultation phase.

We would like to provide here an overview of the Dutch proposal to implement locally the new EU educational exception (article 5 in the final version of the Directive). This is the beginning of our effort to track how countries across Europe will implement, over the coming two years, this mandatory exception to copyright for educational purposes.

We are in particular interested in three issues that have been our concern during the legislative debate on this exception:

  • Are Member States introducing the controversial article 5(2), through which they have the option to make the exception no longer applicable and available to educational establishments if “suitable licenses are easily available on the market (what we call the issue of “license priority”);
  • What is the scope of the exception:
    • How are educational institutions and staff defined?
    • Will the educational community be able to rely on email, cloud services and other password-protected environments, or will these not be considered “secured electronic environments” under the exception?
    • Will Member States define a priori the extent to which a work can be used, leading to different quantity limits in different countries, or will they let practice and courts (relying on the three-step test) define what is balanced in a given situation?

Choices made on these issues will determine, how broadly – or narrowly – can the exception be depended on. Taken together, they will also create either a harmonized or fragmented legal landscape for teachers and learners across the Union.

  • Are Member States changing remuneration rules for educational uses? Currently, 17 Member States do not remunerate most or all of the used permitted under their existing education exceptions – will this change with the new exception?

The Dutch proposal is a simple amendment that adds two paragraphs to the existing educational exception (article 16 of the Dutch Copyright Law). In relation to our issues of particular concern, we note that the Dutch government:

  • decided not to use the article 5(2) backdoor to hack the new educational exception and make it partially or fully not applicable in the Netherlands, which we applaud (because we believe – along with the CJUE – that users should have the right to benefit from the copyright exceptions that were created for their benefit at all times, and not only when there are no market options for them to get a license for those minimum uses that are protected by the exception);
  • could do more to provide as broad a scope for the exception as possible, within the boundaries set by the Directive;
  • has proposed not to change its approach to remuneration – use of content under the exception requires fair compensation (art. 16.1.5°).

Additionally, the proposal includes an explicit provision against contractual override (art. 16.6), which implements another important element of the new EU educational exception.

We will be working with our Dutch partners in the consultation phase, both to provide feedback on the government’s proposal, and to monitor other responses to the proposal. The consultations are open until 2 September 2019.

The education exception was gutted during the Trilogues

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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 →

Ahead of last trilogue: on balance the directive is bad for users and creators in Europe

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Today we are launching a new minisite called “Internet is for the people” that provides an overall assessment of the Directive on Copyright in the Digital Single Market. Our assessment takes into consideration all the key parts of the Directive.

Our aim, with this project, is to present how the Directive  will either empower or hurt users and creators in the digital age. The rules that regulate creativity and sharing must be fair and take into account contemporary online activities and digital practices. Essentially, the internet needs to be for the people, and key legislation needs to be based on this principle.

In order to do this, we analysed nine different issues that are included (or have not been included) in the proposal for the Directive: Upload Filters, the Press Publishers Right, Text and Data mining, access to Cultural Heritage, Education, the protection of the Public Domain, a Right to Remix, Freedom of Panorama and Fair Remuneration for Authors and Performers. Each issue was then scored, allowing us to provide an overall score of the Directive based on an understanding of all elements of the proposal.

Too often, the Directive is reduced just to a few controversial issues: content filtering or a new right for publishers. These are clearly crucial issues, but it is important to understand that the Directive includes other rules that can also have massive effects on Europe’s research and science, education, cultural, or AI industry–just to name a few.

We decided to analyse the Directive through a particular lens: of the potential to either empower or hurt users and creators in the digital age. We are critical of views that the Directive simply attempts to regulate business relationships between two sectors, and that therefore the policy debate should be left to them. The Directive will have tremendous impact on all European citizens, who depend in all aspects of their lives on communication systems and digital tools that copyright law regulates.

The internet needs to be for the people. This means that core policies, like copyright law, need to be “for the people” by design. As our analysis shows, the final proposal for the Directive will likely be a legislative mixed bag. A range of positive developments concerning exceptions and limitations – rules that grant people the freedoms to use content for personal needs or public interest goals – are offered alongside other regulatory proposals that will have extremely adverse effects across all spheres of European society.

On Monday policy makers will have one more chance to fix some of the shortcomings of the proposed directive. Based on the current state of affairs it seems extremely unlikely that this will fundamentally alter the our negative overall assessment of the directive: Seen as a whole, the proposed Directive is bad, and will not make the internet work for European citizens.