The proposed mandatory exception attempts to create a legal framework that allows digital educational activities, including across borders, within the EU region. However, the ease with which a teacher’s ability to benefit from the exception can be taken away by rightholders negates the effectiveness of the exception.
Education exceptions make it possible for educators and learners to use copyrighted materials for educational purposes (e.g. showing a YouTube video in class or using an image in a presentation) without having to ask permission to creators beforehand.
Some EU countries do not have copyright exceptions for educational purposes. Others have educational exceptions, but they are so narrow that they do not align with the daily needs of teachers (e.g. where a teacher would still be forbidden from email an academic paper to a student) and students (e.g. where a student cannot include more than a snippet of a image in their homework assignments). As a result, educators and learners across the EU struggle when dealing with copyright. In addition, they are not able to easily engage in cross-border educational activities, since the exceptions do not work the same way in every EU country.
Educators and learners need an education exception that gives them the same minimum rights across the EU. Those minimum rights should never be subject to the existence (or not) of licenses for those rights, and should be protected against contractual overrides. Finally, those minimum rights should be available to all educators and learners in a variety of formal and informal settings, and should not be limited to the walls of a classroom or only applicable to particular technologies.
The mandatory education exception (Article 4) solves some of the issues faced by EU teachers and students, but it has a major flaw: it can be switched off by copyright owners. Educators and learners can be forced to stop relying on an exception if copyright owners offer to license those works and uses covered by the exception, even if educators or learners do not agree to the terms and conditions of the license offered by the copyright owner. If the proposal is approved, over the coming years educators and learners could benefit from a new education exception only to see it disappear and be replaced by licensing schemes.
The copyright framework for education in Europe is fragmented. While the InfoSoc Directive contains a broad and flexible education exception, this exception is optional for Member States to implement. Most of the national laws are drafted in such a narrow way that they prevent everyday educational activities that take place in schools all over Europe.
The Commission proposed a mandatory exception to copyright for digital uses for educational purposes. This would be a big step forward if the Commission had not introduced a way to nullify the exception entirely by giving Member States the option to give preference to licensing schemes over the exception. This is problematic because it denies users the right to benefit from the exception, and forces them to buy licenses that may contain terms and conditions that are disadvantageous to them. The Commission also took the definition of ‘education’ very narrowly, which means that only formal educational establishments could make use of it. Finally, the proposal limits the uses under the exception to the premises of schools and to the school’s closed computer networks.
The Parliament text represents a step forward on the issue of licensing, as it only gives priority to bilateral licensing agreements, and not to mere unilateral license offers made by rightholders. Both the Council and the Parliament propose to expand the exception to cover any venues where uses take place under the responsibility of an educational establishment. The Parliament also proposes to include museums and other cultural heritage institutions as beneficiaries of the exception. Furthermore, the Parliament attempts to move beyond the limits of the school’s closed networks, by replacing the word “networks” with “environments.” However, this proposed change does not improve the situation because the definition of “environments” is equally limiting. Finally, both the Council and the Parliament propose to prevent contractual overrides of the education exception.
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