The Croatian proposal to implement the new education exception: it could be better

RP-F-2000-21-1
Make copyright truly fit for digital education
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In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education. 

Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

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COMMUNIA supports the WTO TRIPS Waiver for COVID-19

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Supporting an equitable response to emergencies
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Today, Communia and a group of over 100 organisations and more than 150 academics and experts issued a statement calling for the World Trade Organization (WTO) to temporarily suspend its rules on intellectual property where needed to support the prevention, containment and treatment of COVID-19.

This diverse group representing researchers, educators, students, information users, and the institutions that support them, urges all WTO Members to endorse the TRIPS waiver proposal presented by India and South Africa, including provisions that address “the copyright barriers to the prevention, containment and treatment of COVID-19”.

All over the world, educational institutions, research organizations and cultural heritage institutions have been forced into closure as a non-pharmaceutical measure to contain the COVID-19 pandemic. Yet, the majority of national copyright laws in all the continents have no elasticity to cover educational, research and public interest activities that need to take place remotely during the periods when the physical premises of those institutions are closed due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic.

Furthermore, as pointed out in the statement, “(i)n too many countries, researchers lack the rights they need to use the most advanced research methodologies, such as text and data mining, to help find and develop treatments to COVID-19.”

The fact that copyright laws are not able to support these activities constitutes a barrier to an equitable response to COVID-19, and it shows that these laws cannot be deemed to have properly internalized the fundamental rights to freedom of information, freedom of science and education. 

Therefore, the signatories call for urgent action to clarify that all copyright and related rights treaties, including the copyright provisions of the TRIPS Agreement:

  • Can and should be interpreted and implemented to respect the primacy of human rights obligations during the pandemic and other emergencies, including the rights to seek, receive and impart information, to education, and to freely participate in cultural life and share in scientific advancement and its benefits, while protecting the moral and material interests of authors;
  • Permit governments to protect and promote vital public interests during a health or other emergency; 
  • Permit governments to carry forward and appropriately extend into the digital environment limitations and exceptions that are appropriate in the digital network environment, particularly during a health or other emergency. 

You can read the full statement here

Video Recording of COMMUNIA Salon on the role of ex-ante user rights safeguards in implementing Article 17

Yesterday, we held the first 2021 edition of our COMMUNIA Salon. This virtual edition focused on the role of ex-ante user rights safeguards in implementing Article 17. This is certainly the most controversial question that has arisen during the national discussions of the implementation of Article 17, and one that will likely be discussed long after the deadline for implementing the new Copyright Directive is over. During the event we heard the Commission’s views on the topic, recollected the legislative history of Article 17(7), and learned about two implementation proposals that are currently being discussed in Germany and Finland. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here: 

The event was kicked off by Marco Giorello (Head of Copyright Unit, European Commission), who started by recalling that the main objective of Article 17 is to foster the conclusion of licensing agreements between rightholders and online platforms, and not to provide an enforcement tool to rightholders against illegal content. He then summarized the Commission’s views on the practical application of Article 17(7), clarifying that this provision requires online platforms to consider legitimate uses ex-ante and that it is not enough for Member States to give flesh to user rights by simply relying on ex-post redress and complaint mechanisms. He further acknowledged the struggles in finding a solution to implement Article 17 in a balanced way, pointing out that this is probably the first time that the EU lawmakers are trying to find a way to respect fundamental rights in a machine-to-machine environment.

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Communia fights for more room for right to research in international copyright law

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Promoting access to knowledge for all
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Access to knowledge is essential to ensure inclusivity and equality of our societies, particularly in the digital age. Researchers and the institutions that serve them are struggling to perform their activities at a distance, due to outdated copyright frameworks that do not properly balance all the rights that are deemed fundamental to our societies. It is time to abandon the rhetoric that copyright exceptions that support access to knowledge activities will harm authors and the industries that depend on them. 

For the next three years, Communia will be working on a project to study and promote changes in international copyright law to ensure equity in the production of and access to research. Our aim is to promote effective change in the political discourse towards the adoption of an international legal framework that protects legitimate access to knowledge.

We will work with a broad range of partners representing researchers and the institutions that serve them, including our Communia members Creative Commons and Wikimedia Deutschland. Our activities will include producing research, provide training to a global network of change makers, and connect a global expert network to a global community of researchers, libraries, museums, archives, and digital rights activists active in international copyright policy making.

The project will be run by the American University Washington College of Law (AUWCL), through its Program on Information Justice and Intellectual Property (PIJIP), and will benefit from a grant from Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin.

Read more about the project here.

How Hungary has quick-fix implemented Article 5 of the DSM directive

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Taking care of what matters the most
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This blogpost is part of a series of blogposts where we track how EU Member States are adapting their national laws to the requirements of Article 5 of the Copyright in the Digital Single Market Directive (DSM directive), which sets new minimum standards for the digital and cross-border use of copyright materials in education. So far we have published analysis of the Dutch and the German proposals. Today, we provide an overview of the Hungarian new education exception by Mónika Trombitás Andersson. This overview focusses on the substance of the new exception; for critical perspective on the legislative procedure see here.

Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.Continue reading

Copyright and COVID-19: Has WIPO learned nothing from the pandemic?

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It's time to put our differences aside
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In November, Communia participated in the World Intellectual Property Organization’s (WIPO) 40th session of the Standing Committee on Copyright and Related Rights (SCCR), the most important forum at the global level for copyright rulemaking. Due to the pandemic, this was the first time the Committee met this year, and the meeting took place in a hybrid format, with most of the delegations participating through online means. 

Our expectations for this meeting were high. The COVID-19 pandemic has shown, more clearly than ever, that copyright can stand in the way of schools, libraries and cultural heritage institutions properly operating. Copyright exceptions that permit these public interest activities still do not exist everywhere. Moreover, exceptions do not always apply regardless of whether activities are conducted on site or at a distance (digitally).

Communia and other civil society observers were expecting the Committee to consider the impact that the COVID-19 pandemic has had on these public interest activities, and take appropriate action. However, WIPO member states had previously decided that, due to the format of the meeting, they would not engage in negotiations on any of the items on their agenda. Therefore, despite references to the problems caused by the pandemic in several Delegations’ statements, none put forward any proposal to deal with these issues.

Exceptions and limitations: shouldn’t we be there yet?

As explained in Communia’s statement to the Committee and highlighted by numerous WIPO-commissioned studies, WIPO member states are well aware that exceptions (notably the education and research exceptions) that exist today do not always have the elasticity to cover activities that take place remotely. More importantly, WIPO member states know that only an international instrument can solve the cross border aspects of distance activities, when the application of multiple national laws is triggered.

Progress on the topic of copyright exceptions has been limited for a number of years now. The only notable exception has been the Marrakesh Treaty, which establishes a mandatory exception for the benefit of persons who are blind, visually or otherwise print-disabled. Discussions on an international legal framework to cover a minimum set of legitimate uses made by persons with other disabilities, by educators, learners and researchers, and by libraries, archives and museums, have been diverted time and time again. 

With the pandemic, this state of affairs is even less acceptable than it was before. Before we were already seeing a trend towards digital and cross-border access and use of copyrighted materials for educational, research and other public interest purposes. Yet, WIPO member states could justify their inaction by telling themselves that these uses were not significant. 

However, in a few months, distance activities became the new normal. Now, institutions all over the world are opting for remote formats or hybrid models of in-person and online education, research and access to the collections of cultural heritage institutions. And we may never go back to the way things were before.Continue reading

DSM Directive implementation update: six months to go and no end in sight

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MS still tying to make sense out of Art 17
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According to Article 26 of the Copyright in the Digital Single Market Directive, Member States have until the 7th of June 2021 to implement the provisions of the Directive into their national laws. This leaves member states exactly 6 months to implement the directive and so it is time to take stock of the implementation status in various Member States. 

So far not a single EU Member State has fully implemented the provisions of the Directive and only two Member States have implemented parts of it (In 2019 France implemented the new press publishers’ right and in June of this year Hungary implemented the exception for online educational use). In most of the EU Member States implementing legislation still needs to be introduced into parliament. In the meantime, the European Commission is still working on the implementation guidance for Article 17 that it is required to publish, and the Polish government’s request to annul parts of Article 17 is still under deliberation in the Court of Justice of the European Union (the Advocate General will publish its opinion on the 22nd of April 2021 less than two months before the end of the implementation deadline). All in all it looks increasingly unlikely that most Member States will implement the Directive in time. So let’s take a more detailed look at where the implementation process stands in key Member States. 

Commission’s Guidance

The European Commission closed its targeted consultation on the implementation guidance in September and is currently working on a final version of its guidance that is not expected to be adopted before early next year. The Commission has made it clear that it does not expect key elements of the guidance to substantially change from its earlier draft, which is designed to limit the use of automated filters and requires that user uploads remain available while they are under dispute It seems that the Commission is unwilling to bow to the considerable pressure from some Member States and from rightholders to change key elements of the draft guidance. Continue reading

Blocking Wikimedia from becoming a WIPO observer is unacceptable

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All legitimate observers should be approved
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This week, the member states of the World Intellectual Property Organization (WIPO) postponed a decision on the Wikimedia Foundation’s application to become an official observer of this organization. China raised concerns, at 61st series of meetings of the Assemblies of WIPO Member States, that the Wikimedia Foundation “has been carrying out political activities through its member organizations which could undermine the state’s sovereignty and territorial integrity.” The Wikimedia Foundation would need to provide further clarifications about the volunteer-led Wikimedia Taiwan chapter and about Wikimedia’s “Taiwan-related positions.” Discussion will resume at an extraordinary session of the General Assembly in early 2021.

This decision came as a shock to many observers of WIPO, since there has only been one case in recent memory where an observer status application to WIPO has not been accepted. In 2014, the Pirate Party International was rejected due to being a federation of political parties. As highlighted by the United States in its statement in support of Wikimedia Foundation’s application, “allowing the Wikimedia foundation to participate as an observer would be entirely consistent with the established precedent at WIPO of supporting other existing observers and Member States that also have some affiliation with Taiwan.”

According to Amanda Keton, General Counsel of the Wikimedia Foundation,

“(t)he objection by the Chinese delegation limits Wikimedia’s ability to engage with WIPO and interferes with the Foundation’s mission to strengthen access to free knowledge everywhere.”

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Video recording of the COMMUNIA Salon on the German proposal to implement Article 17

Last week on Thursday we held the third virtual edition of our COMMUNIA Salon. This edition focussed on the recent German proposal to implement Article 17 of the DSM Directive and included contributions by John Henrik Weitzmann (Wikimedia Deutschland), Julia Reda (Gesellschaft für Freiheitsrechte), Martin Husovec (London School of Economics) and Paul Keller (COMMUNIA). If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:

COMMUNIA Salon 2020/3: The German proposal to implement Article 17 – A broken promise or a way forward?

COMMUNIA Salon 2020/3: The German proposal to implement Article 17Licentie

On Thursday, the 2nd of July, we will be organising the next edition of our virtual COMMUNIA Salon to discuss the new German implementation proposal for Article 17 of the DSM directive. For this event we will be joined by Julia Reda (Project lead control © at the GFF and former MEP), John Hendrik Weitzmann (General Counsel at Wikimedia Deutschland) and Dr. Martin Husovec (Assistant Professor, Department of Law, London School of Economics). 

As we have written in our initial reaction, the German proposal is the first serious attempt by a member state to implement Article 17 of the directive in a way that preserves the precarious balance between the rights of users and creators. Where previous implementation proposals have limited themselves to (selectively) transposing the provisions of the directive, the German Ministry of Justice has presented a proposal that adds a number of interesting (and potentially controversial) additional provisions, which seem to be designed to strengthen the position of both users and individual creators. These include the addition of a remunerated de-minimis exception intended to safeguard common types of so-called “user generated content”, the ability for uploaders to “pre-flag” legitimate uses of protected works in their uploads, and the addition of a direct remuneration rights intended to ensure that individual creators benefit from the new legal regime.

With this proposal the German government presents an alternative vision for how Article 17 could work in practice, which could serve as a model for other member states when implementing the directive. During our Salon we will hear first reactions from civil society stakeholders and analyse the legal underpinnings of the more innovative elements of the proposal, such as the proposed de-minimis exception. The presentations will be followed by an informal question and answer session.

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 2 of July, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.