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 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

Putti spelen op een wip
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

Dutch Ship
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

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 →

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.

Art 4/2 goes against CJEU landmark ruling on copyright exceptions

Untitled
Do not set a dangerous precedent for user rights!
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The Court of Justice of the European Union has not had many opportunities to review the EU legal framework for exceptions and limitations to copyright, and in the few cases where it had to interpret an EU exception, it has not always adopted positions that are favourable to the beneficiaries of the exceptions. Yet, there is one case, a landmark case for user rights, involving the Technical University of Darmstadt and publisher Eugen Ulmer KG, where the Court exemplary defended the position of such beneficiaries against the rights holders. Now the EU lawmakers want to adopt a law that fundamentally undermines the protection granted by that CJEU ruling to user rights.

How did the CJEU ruling protect user rights?

The TU Darmstadt case revolved around the EU exception that allows public libraries and other institutions to digitize works in their collections and make them available in dedicated terminals located in the libraries reading rooms or elsewhere on their premises (art.5(3)(n) of the InfoSoc Directive). The dispute had several legal issues, but the one important for the analysis of art 4, paragraph 2 of the proposed Directive for Copyright in the Digital Single Market (DSM Directive) is whether the libraries could rely on said exception even if publishers were offering to license a digital version of the books.

The EU exception embodied in art.5(3)(n) of the InfoSoc Directive covers “works and other subject-matter not subject to purchase or licensing terms”. Publishers argued that the mere fact that the rightholder offers to conclude a licensing agreement with a library is sufficient for ruling out the exception. The CJEU considered, however, that, if the mere act of offering to conclude a licensing agreement were sufficient to rule out the application of the exception, such interpretation would:

  1. Be difficult to reconcile with the aim of the exception, which is “to maintain a fair balance between the rights and interests of rightholders, on the one hand, and, on the other hand, users of protected works who wish to communicate them to the public for the purpose of research or private study undertaken by individual members of the public.”
  2. Imply that “the rightholder could, by means of a unilateral and essentially discretionary action, deny the establishment concerned the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.
  3. Be “liable to negate much of the substance of the limitation provided for in that provision, or indeed its effectiveness”, since the limitation would apply only to those increasingly rare works of which an electronic version is not yet offered on the market.

Continue reading →

COMMUNIA endorses Treaty on Education and Research, and asks others to follow suit

Italian Landscape with Umbrella Pines
We can make education brighter
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Communia has endorsed the Civil Society Proposed Treaty on Copyright Exceptions and Limitations on Education and Research Activities (TERA), and asks others to follow suit, ahead of the 37th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR). SCCR/37 will take place from 26 – 30 November in Geneva, and civil society advocates will propose that the treaty’s provisions be considered as a model for future text-based work by the committee.

The proposed treaty is the result of an extensive consultation process with various stakeholders (including Communia), which culminated with its adoption at the 5th Global Congress on Intellectual Property and the Public Interest on September 27, 2018. Institutions and individuals are both welcome to endorse the treaty.

Continue reading →

EU copyright reform grinds into trilogue negotiations

Oordeel van Salomo
Secret judgment of EU copyright reform
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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.

Continue reading →

New Joint Letter: Asking for a better copyright for education

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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.

Continue reading →