The Netherlands leads way with implementation of the new educational exception

Dutch Ship
Simple implementation, without the license override mechanism
Licentie

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Are Member States introducing the controversial article 5(2), through which they have the option to make the exception no longer applicable and available to educational establishments if “suitable licenses are easily available on the market (what we call the issue of “license priority”);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.