On his blog just before Christmas, Vice President Ansip made a case for a simple copyright law for education to help Europe’s teachers and students. While we can only support a simple copyright law that supports education instead of making it harder for educators to teach, the Commission did not propose such a solution in the directive. The Commission has limited the new exception to official ‘educational establishments’ and has written a preference for licenses over the exception in the text. By doing so they are leaving important parts of education behind.
Leaving important players behind
Ansip writes about the important transition from solely physical education to embracing digital technologies. In the process, the patchwork of exceptions to copyright for educational purposes across Europe blocks much innovation in education:
Unfortunately, there are many differences around Europe in how these exceptions are applied, especially when it comes to using copyright-protected material in digital or online teaching activities.
Digital technologies are transforming the teaching and learning environment. They are being used more and more throughout education: laptops in the classroom to show video clips, interactive whiteboards to display webpages, for example.
But current EU law does not properly address digital’s significant presence and influence in the learning environment. It needs to catch up.
This makes it strange that the Commission’s definition of ‘learning environment’ is so limited to official educational establishments in the proposed directive. Education is understood today as a lifelong process that is conducted by a multitude of institutions, and even learners themselves. This was noted in the Commission Communication ”Making a European Area of Lifelong Learning a Reality” and the subsequent Council Resolution of 27 June 2002 on lifelong learning. Yet, when defining copyright law, the European Commission fails to embrace its own lifelong learning approach by limiting the potential beneficiaries of the proposed exception to ‘educational establishments’.
In doing so, the proposed exception will leave unharmonised the digital uses for educational purposes made by other individuals and organisations, such as the great value that museums, libraries, archives, professional associations, and civil society organisations give to education. Think for example of education about the dangers of drugs that civil society organisations provide for teenagers, or the great educational programmes of libraries that help Europeans embrace their local culture. This limitation would also exclude employees, apprenticeships and practical learning as vocational education at their company, which is a key part of Europe’s lifelong learning goal.
Preference for licenses
Also in the proposed new exception is the licensing ‘opt out’ where member states can choose to rely on ‘adequate’ licenses instead of the exception. The failure of the Licenses for Europe process suggests that licensing cannot be a solution that can replace legislative change, and in particular the modernisation of the exceptions package. The EC efforts to harmonise digital education at the EU level will be of little consequence if member states can ultimately decide to subject the application of the exception to the availability of adequate licenses.
We may accept that Member States have the freedom to build on the existing arrangements concluded at national level. However, as noted by the CJEU in the TU Darmstadt versus Ulmer decision, the mere act of offering to conclude an adequate licensing agreement should not rule out the application of an exception. Many educational institutions will be ill-placed to negotiate license terms or will be forced to accept the terms dictated by the licensor (in the case of mass-market licenses), while others will not even be able to consider purchasing a license, due to the costs involved. Therefore, the lawmaker should not allow licenses to take precedence over an essential user right on the mere grounds that they are technically available in the market.
Ansip writes about “…simplifying a legally complex situation in the European Union so that students and teachers can feel confident and legally secure about using copyrighted material in digital education activities”. This rosy picture will not become reality if the exception has such a limited scope and licensing solutions are preferred.
We need to make sure that when we update the copyright rules for education, we do not only think back to traditional education, but embrace all of the education that Europe has to offer. We need to broaden the exception to include this and remove the licensing references or we will leave behind education in Europe.
Let’s make sure we fix this for the entirety of education now, because as Ansip writes:
Almost one in four teachers said they came across copyright-related restrictions in their digital teaching activities at least once a week.
Read more about how we can improve copyright for education in COMMUNIA’s position paper: Commission’s proposal on education: the devil is in the details.