Do you remember the idea of educational fair use? The idea that education can benefit from a broad, flexible exception for a wide range of uses of copyrighted content while teaching and learning? The question is worth asking, as this progressive approach to copyright and education has not been mentioned even once in the ongoing European copyright reform process. It is a sign of how far away we are from right copyright for education. Instead, we are being pulled ever deeper into an opposite model, in which licensing is seen as the best copyright solution for educators and educational institutions. The Council of the European Union has just made one more step in that direction.
A quick reminder where we are with the copyright reform process in Brussels: the key vote in the JURI committee is continuously extended, and currently is planned for January 2018. The date should be seen as tentative. In the meantime, one more committee – the civil liberties committee LIBE – will make it’s vote in late November (but with a sole focus on the controversial article 13, the content filter article). As we await decisions to be made in the European Parliament, a proposal from the Council, prepared by the Estonian Presidency, has recently surfaced. Unfortunately, it spells one more step towards the licensing chasm for the educational sector.
Enter Extended Collective Licensing
The proposal includes a completely new chapter on “Measures to facilitate collective licensing” – and in it, a single article on “Collecting licensing with an extended effect”. In the Commission’s proposal, extended rights licensing is proposed as means of solving issues around making available out-of-commerce works by heritage institutions (see our previous analysis on the relationship between the new article and the commission’s proposal here) . But let us remember, that extended rights licensing schemes present in Nordic countries for educational uses are also the reason that a carve-out mechanism has been included in the article on the educational exception. As a reminder, Commission has proposed that Member States could “subject the application of the exception or limitation … to the availability of adequate licenses”. It is a clause that we have been criticising during the last year, together with 34 organizations.
The new article, proposed by the Council, serves the purpose of establishing EU-wide legal framework for extended rights licensing by collecting societies. In practical terms, it should be read as an invitation for Member States to adopt such schemes. And once these are in place it’s quite obvious what choice States will make regarding “application of the exception”.
Do not export ECL for education, export the Estonian educational model!
Commentators have been wondering, why Estonia, which fancies itself as a “digital nation”, is supporting during its Presidency copyright proposals that will hinder modern digital economy and society. For example, article 13 – the content filter article – which might break open communication based on online platforms. The same can be said about education. Estonia, like most Nordic countries, has an impressive educational system. It also has a robust educational exception – the best one in Europe, in our opinion – Estonia scored highest on our copyright for education barometer. No one has provided an answer to this question? Does Estonia want to join the “Nordic copyright for education” club, and replace its exception with an extended rights licensing system? We sincerely hope that is not the case.
We are not against extended rights licensing as such. We share the view that it is a good solution for heritage institutions dealing with out-of-commerce work – another area that is being addressed by the new Directive. Yet a model that works in the heritage sector will not necessarily be a good fit for education. Heritage institutions have only recently – with the advent of digitisation – dealt with the issue of widespread use of works from their collections. In education, there’s a long history of broad use of copyrighted works for educational purposes. Heritage institutions are debating how to make out-of-commerce works available online – there is no comparable debate in the educational sector. It is important not to treat extended rights licensing as a one-fits-all solution – and this seems to be the case in the current Council proposal.
It is not just ECL that is the problem
The proposal includes several other changes that are harmful for the education sector. New language in recital 16 – one that addresses the scope of the exception – strengthens a concept already present in the Directive, that the educational exception should in most cases apply just to excerpts. This is an idea that kills the exception – try teaching students anything based just on half of Hamlet.
Furthermore, looking beyond article 4 – the one that concerns the new educational exception, there are other issues that should worry educators and educational institutions. There is still risk of a new “link tax”, that might force educational platforms to pay money to press – and maybe even scientific publishers. And, most importantly, the content filter will hurt educators publishing content on social media platforms.
Things are not looking good. If you want to help us fight for better copyright for education, please join our coalition. Regarding the content filter, please join the Create.Refresh campaign. And you can follow our blog to get an overview of the rest of the copyright reform process.
