Our study “Educational Licences in Europe” is out now

Licence priority sounds even worse now

The European Union is coming closer to approving a mandatory educational exception that may address some of the limitations copyright law places on everyday educational activities. However, the current proposal for a Directive on Copyright in the Digital Single Market would allow licences that are easily available in the market to take precedence over the educational exception.

Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:Continue reading

Is the new education exception in Germany geared towards the 21st century?

Anatomische les van professor Paaw
New law already scheduled for review
This is a guest post by Bernd Fiedler, policy manager at Wikimedia Deutschland. Bernd previously worked as a teacher and is aiming at improving the framework for free education. WMDE is a Communia member organisation.

In the “Urheberrechts-Wissensgesellschafts-Gesetz” (engl. roughly: Copyright Knowledge-Society Act), the German legislator tries to improve the legal framework for educators and scientists in Germany, as part of a general clean-up of the exceptions section of the Copyright Code. In general, 15% of a protected work can be used for educational and scientific purposes without permission until 2023.

The law, introduced last minute at the end of the legislative period in 2017, was long overdue. It was heavily lobbied, it is limited to five years, and it is already scheduled for review. Still, as Federal Minister of Justice Heiko Maas put it, because it is bundled into a single document, it somewhat clarifies regulation for educators, coming into effect on March 1, 2018.

In Germany, legislation on education and research is fragmented due to the federal constitution. So far, with the exception of the Copyright Code, which is federal law, the state-level executive and legislative bodies have full responsibility for education in their Länder (states). This includes the details on how copyright exceptions and limitations for education are handled in practice, which is regulated very granularly in treaties between the states’ culture ministers on one side and rightsholder representatives on the other. In practice, there were 16 different ways of handling copyright in education and some federal-level treaties that had to be considered.

From March onwards, educational institutions can use up to 15% of any single work (e.g. Book, Film etc.) in order to supply their courses and staff, and use that amount even for third-party presentations, as long as this serves to present the teaching outcome or similar at the institution itself. Single images, “a few” scientific articles from the same academic journal issue, out-of-distribution works and “works of smaller proportions” can be used in their entirety.

Before, the federal law only contained vague legal terms such as “shorter extracts”, “works of smaller proportions”, the meaning of which had to be negotiated into the abovementioned treaties at state level, leading in practice to different extent limitations in each state.

Shortcomings of the new exception

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Licenses: we are past copyright

The finish in the great match race [...] at Sheepshead Bay, N.Y., June 25th, 1890 between Salvator and Tenny / L.M.
Copyright exceptions should win this race

We have been arguing for quite sometime now that handing out the power to define the scope of users rights to right holders – in the form of license agreements that they can (almost unilateral) draft and frame as they wish – is bad. Really bad: licenses fragment the legal framework that mandatory exceptions try to harmonize; licenses contain abusive terms or impose obligations on users that are not foreseen in the laws; and licenses have a huge impact on national budgets.

Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.

Allowing licenses to override exceptions is the only treat that publishers want

The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.

MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.

Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).

It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.Continue reading

Educators ask for a better copyright

Educators ask for a better copyright
58 signatures for better copyright

Today COMMUNIA sent a joint letter to all MEPs working on copyright reform. The letter is an urgent request to improve the education exception in the proposal for a Directive on copyright in the Digital Single Market. It is supported by 53 organisations representing schools, libraries, universities and non-formal education, and also 5 individual educators and information specialists.

The future of education determines the future of society. In the letter we explain the changes needed to facilitate the use of copyrighted works in support of education. We listed four main problems with the Commission’s proposal:

#1: A limited exception instead of a mandatory one

The European Commission proposed a mandatory exception, which can be overridden by licenses. As a consequence educational exception will still be different in each Member State. Moreover, educators will need a help from a lawyer to understand what they are allowed to do.

#2 Remuneration should not be mandatory

Currently most Member States have exceptions for educational purposes that are completely or largely unremunerated. Mandatory payments will change the situation of those educators (or their institutions), which will have to start paying for materials they are now using for free.

#3: Excluding experts

The European Commission’s proposal does not include all important providers of education 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 conducted in the workplace. All these are are excluded from the education exception.

#4: Closed-door policy

The European Commission’s proposal limits digital uses to secure institutional networks and to the premises of an educational establishment. As a consequence educators will not develop and conduct educational activities in other facilities such as libraries and museums, and they will not be able to use modern means of communication, such as emails and the cloud.

You can still endorse the letter by sending an email to education@communia-associations.org. You can read the full letter below or download the PDF.Continue reading

Seven ways to save the EU copyright reform effort in 2018

Vuurwerk ter ere van de kroning van Willem III en Maria II tot koning en koningin van Groot-Brittannië
Its 2018! Time to finally #fixcopyright

With the arrival of 2018 the discussions of the Proposed Copyright in the Digital single Market Directive enters into its third year. After more than a year of discussions in both the Parliament and the Council, it is likely that 2018 will at the minimum see final positions from both institutions. Depending on how quickly these positions will be established we may even see the adoption of the directive in 2018. To get everybody up to speed here is a quick refresher of what is at stake in 2018:

1. The publishers right must die!

Form the start the idea of granting press publishers a neighbouring right (an extra layer of copyright) in their publications has been one of the most controversial parts of the Commission’s proposal. The idea, based on laws that have failed in both Germany and Spain, is so deeply flawed that there is almost no one from the academic community who is willing to argue in favor (there are of course lots of academics who oppose it). Even worse, in the course of 2017 it has become clear that both the European Parliament and the European Commission have tried to lock away self-commissioned studies that clearly show that the new right not only would be ineffective at directing views (thus, funds) back to publishers, it would also harm media pluralism and access to information.

In spite of the overwhelming amount of evidence speaking against it, and even though its original sponsor (Commissioner Oettinger) is no longer in charge of the dossier, the idea of granting press publishers more rights in order to economically strengthen them refuses to die. It is time that MEPs and the Member states realize that adopting laws based on wishful thinking is the opposite of evidence based policy making, and refuse to create additional rights for publishers. This should be easy as there is an alternative proposal that would strengthen the legal position of press publishers without threatening the freedom to link.

2. Real legal certainty for Text and Data mining!

One of the core problems of copyright systems without a flexible exception (like fair use) is that everything not specifically permitted in the text of the copyright law will be deemed an infringement. This has resulted in an unclear legal status regarding Text and Data mining (letting computers read and interpret texts and other data). Since most forms of text and data mining require the making of copies, rights holders argue that text and data mining needs to be licensed, even if the entity engaging in TDM has legal access to the text and/or data to be mined. Continue reading

The defense of education at the World Intellectual Property Organization

Fighting for minimum international standards!

As we reported last month, Communia attended the 35th session of WIPO’s Standing Committee on Copyright and Related Rights (SCCR), which took place from 13 – 17 November in Geneva. The SCCR has a mandate to discuss limitations and exceptions to copyright, including for educational purposes. While Communia supports efforts to reach minimum international standards of exceptions and limitations to copyright in all the different areas that are currently under discussion (libraries, museums, archives, persons with disabilities, and education), our role there is specifically to support the dialogue on educational exceptions.

Why is it important to have baseline international standards?  

First, it’s a question of educational equity. The different treatments of education by copyright laws all over the world result in huge discrepancies in the way education is provided, thus increasing the inequality in educational outcomes. Educators in countries with none or poorly designed education exceptions have to be extremely careful when selecting the teaching materials they will use in educational activities or they can risk civil and criminal action for copyright infringement. Meanwhile, in countries that have strong, well-drafted copyright exceptions, teachers have the freedom to choose and use whichever materials they feel are most adequate for their instructional activities.Continue reading

The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks

Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it. Continue reading

Educational Institutions in Europe advocate for a better copyright reform for education

20171113_095554 (1)
#fixcopyright for education

There are many controversial things about current european copyright reform. We mainly hear about the fear of censorship of user-generated content or attempt to introduce something called ‘link tax’ to ensure press publishers right to control over the digital use of their content. But education? There are not many people, who will disagree that what Europe needs right now is a modern education system enhancing creativity, innovation and economic growth. Not to mention the importance of lifelong learning and the need of improving the quality and efficiency of education. Still repeated demand for digital skills and competences sounds like a cliche. You can find all of it well written down in EU documents and programs concerning education and training. So, there is one important question – why, when dealing with copyright issues, all these great ideas about the importance of education get forgotten?

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SCCR/35 Communia statement on limitations and exceptions for education


In our capacity of permanent observers of the WIPO Standing Committee on Copyright and Related Rights, we are attending the 35th session of the Committee, which is taking place in Geneva from 13 to 17 November 2017.

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.

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Access to cultural heritage: Geoblocking or a Digital Single Market

Geoblocking has no place on the Internet

This is a slightly edited version of an analysis that was first published by Europeana on the Europeana Pro website

More than a year after the European Commission published its proposal for a Directive on Copyright in the Digital Single Market (DSM directive), the proposal continues to be discussed both in the Council and in the European Parliament. While the discussions in the European Parliament have recently slowed down to a crawl (the vote in the Legal Affairs committee is not expected before January), the discussions between the Member States in the Council are picking up steam: earlier this week, the Estonian Council presidency’s  consolidated compromise proposal was made public.

The compromise proposal contains an entire new chapter (chapter 1a – Measures to facilitate collective licensing’) that contains an a new article (art 9a – ’Collective licensing with an extended effect’). To anyone familiar with the Commission’s proposal (and the critical reception by cultural heritage institutions) this addition will appear somewhat odd as the Commission’s original proposal already relied on ’collective licensing with an extended effect’ as a mechanism that would allow cultural heritage Institutions to make out of commerce works (OOCW) from their collections available online.

So what exactly is going on here? Articles 7-9 of the Commission’s proposal are aimed at enabling the cross border use of out of commerce works. This would allow cultural heritage institutions to make such works from their collections available online so that they can be accessed from everywhere within the EU. While we think that relying on extended collective licensing alone will not be sufficient to achieve this objective for all sectors and all types of work, we are happy with the ambition to solve this problem on an EU wide basis.

A legal basis for Extended Collective Licensing

By contrast, the newly proposed article 9a focusses on (existing) national extended collective licensing arrangements and would not have any cross border effects. Instead, it introduces provisions into the EU legal framework that would remove the legal uncertainty that currently surrounds the extended collective licensing arrangements that exist in a number of (mainly nordic) EU Member States:

A functioning copyright framework that works for all parties requires the availability of proportionate, legal mechanisms for the licensing of works. Systems such as extended collective licensing or presumptions of representation are a well-established practice in several Member States and can provide such solutions, […] Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation to do so (Recital 28a + 29c of the Estonian Compromise proposal)

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