La liberté guidant le peuple

UNESCO recognizes the importance of Exceptions and Limitations

OERs can be used to create inclusive and equitable education and to promote lifelong learning opportunities for all. They are an important factor that contributes to the improvement of educational opportunities.

However, while the special impact of OER is clear, often little attention is given to the issue of educational exceptions to copyright. Copyright frameworks that lack such exceptions can be an unjust obstacle for educators, and in particular can adversely affect the creation and use of OERs. Last year, we participated in the 2nd World OER Congress with the aim to raise awareness about educational exceptions as complementary means for achieving the goals of Open Education. The Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, then, did not include actions related to copyright reform. Fortunately, this has now changed.

Confusing copyright rules hold teachers back

Before the Summer, Communia participated in the regional consultations and submitted recommendations to the draft of the Recommendation concerning Open Educational Resources. This was done in cooperation with the European Association of History Educators (EUROCLIO) and the Lifelong Learning Platform.

Copyright reform that is favourable to educators is crucial to support the creation of high-quality OERs by teachers and educators, including in the non-formal sector teaching staff. An educational exception secures the same user rights for educators and learners as open licensing. From the perspective of OER policy making they should therefore be seen as complementary measures.

We furthermore need today educational exceptions that allow the public online sharing of content. Such exceptions would enable creators and users to build on a much larger amount of content that they can use in OERs. This will create the opportunity to make high quality content, since good educational exceptions can be complementary to the use of openly licensed content. Unless, it is made explicit that copyrighted sources can be used within OERs, creators and publishers of OER will be reluctant or refuse to use OERs that contain copyright materials, which will undoubtedly hamper the quality of education that students will receive when he or she is taught with OER.

Copyright reform necessary for quality OERs

The UNESCO recommendations shared before the summer rightly called for a free flow of ideas by word and image, and in order to achieve this, it is needed to give the creators and publishers of OER the legal certainty that they can do this. It is important to do this on an international level, because OERs travel across borders.

Currently, one of the main obstacle with creating good quality OER is copyright. Educators increasingly become creators and develop and compile their own materials. In case they use these materials with their own students they can often use the copyright exception for educational use, but if they want to share these resources with others – which is in the very nature of OER – copyright becomes a barrier.

Educators who do share the resources that they created either take the risk of including copyrighted materials in the OER that they share, or decide to only use copyright cleared materials. In the first case, the creators of OER take a legal risk. In the second case, the creators of OER are not necessarily using the materials that would lead to the best learning.

Therefore we recommended to:

  • Build awareness on educational exceptions and limitations to copyright, whose understanding is crucial to determine what rules apply to (sharing) online OER materials, especially because of their cross border use;
  • create a coherent approach to ensure that national and international legal provisions concerning copyright complement and support, rather than restrict, the production of high-quality OERs
  • ensure that copyright exceptions for educational use are in place as supportive measures for the use, creation,publication and sharing of free to use educational resources by teachers and educators of all types, including in the non-formal sector, and that facilitate the cross-border exchange of such resources.

First draft of the Recommendation concerning Open Educational Resources

The first draft of the Recommendation concerning OER has finally, recognized the importance of exceptions and limitations for OERs. While this is just a small step towards the understanding that we need to include policies on copyright when thinking about OER, it is an important step towards the right direction.

In this first draft the following paragraph was added:

12. [..] Member States are encouraged to:

(f) raise awareness concerning copyright exceptions and limitations for education and research purposes in order to facilitate the integration of a wide range of works in OER, recognizing that the fulfillment of educational purposes requires engagement with existing copyrighted works.

What is next?

It is now up to Member States to forward to the Secretariat of UNESCO their comments and observations by 4 January 2019. The comments will be take into account before the opening of the 40th session of the General Conference. It is important to let your country know that it is important to not only focus on open licensing, but also on creating exceptions and limitations that work for research and (open) education.

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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