COMMUNIA and Wikimedia Deutschland held a panel discussion on February 15th to discuss whether the new mandatory exceptions in the EU Copyright Directive could serve as a model to solve some of the most pressing international-level problems around education and research.
The event started with Marco Giorello, the Head of the Copyright Unit at DG CONNECT of the European Commission, explaining the reasons for introducing mandatory exceptions for education and research purposes at the EU level (from min. 8:55 to min. 20:50). Marco pointed out that both research and education were at the forefront of the Commissions’ discussions on the modernization of the copyright system. The need for introducing mandatory exceptions for those activities became apparent after conducting a study of the national implementations of the optional EU-level education and research exceptions. Not all Member States had implemented the exceptions of the InfoSoc Directive. Those who had implemented them had done it in a very different way, and in a number of cases the national exceptions were clearly not applicable to digital and online uses.
Giorello presented some of the mandatory and optional features of the new education and text and data mining exceptions, including:
- the prohibition on contractual overrides, which is mandatory for EU Member States and applies to those exceptions;
- the complementary mechanism between the education exception and licenses, which gives Member States the option to implement the exception in a way that allows “suitable licenses” to take precedence over the exception, when they cover the same uses; and
- a mechanism that makes sure that education at distance works the same way in practice across the entire EU: a sort of legal fiction that applies to online educational uses that makes sure that the copyright-relevant acts carried out under the responsibility of educational establishments are always deemed to be carried out in the country of the educational institution. This mechanism aims at solving territoriality issues within the EU internal market and, as Marco recalled, it is not the first time that the EU has done it in the context of exceptions in EU law. Marco said that the precedent that inspired the EU to introduce this cross-border mechanism is to be found, first, in the EU Orphan Works Directive (which has a very similar mechanism) but also to some extent in Directive implementing the Marrakesh Treaty in the EU (which also has a mechanism to make sure that cross-border access works in practice).
Next, Catherine Stilher, the CEO of Creative Commons, recalled that education and research were two areas where civil society interests were difficult to be heard (from min. 24:39 to min. 35:01). Stihler, who was a Member of the European Parliament during the negotiations that led to the adoption of the DSM Directive, argued that the compromise represented an improvement on what had gone on before. She recalled that the different national rules were often contradictory, leading to legal uncertainty, and that those rules often conflicted with other national and EU priorities, namely the objectives of the EU in removing barriers to cross-border cooperation.
Stihler went on to describe the challenges with reaching consensus on the text and data mining exceptions, namely on the rights reservation regime (which led Creative Commons to recently issue a statement). The former MEP also called attention to one of the biggest flaws of the education exception: the fact that it does not cover education provided in informal settings, which are an important site for lifelong learning. She shared the view that, despite all of this, what was achieved at the EU level and what the EU can teach us is particularly helpful “when we are thinking about cross-border barriers globally” and a fit for purpose copyright regime globally to help educators and researchers alike.
As a third speaker, Erry Prasetyo, Intellectual Property and Trade Disputes Officer at the Ministry of Foreign Affairs of the Republic of Indonesia, shared his personal views on the subject (from min. 38:00 to min. 52:50). Unfortunately, due to technical difficulties, it was not possible to obtain a clear recording of Prasetyo’s entire intervention. However, Prasetyo made a number of highly important remarks regarding the current state of international negotiations, particularly in the context of the World Intellectual Property Organization (WIPO) and in bilateral trade negotiations. The Indonesian diplomat began his intervention by describing what he considers an imbalance in the international copyright system that needs to be corrected. Prasetyo drew attention to the fact that the regime for exclusive rights had been overhauled extensively over the last 25 years to account for the impact of digitization and the internet on uses of copyrighted works. At the same time, nothing similar to the WIPO Internet Treaties (i.e. WCT and WPPT) has happened for limitations and exceptions, which are still stuck in the 1970s but also in need of an update. He noted that when countries from the Global South tried to modernize their copyright laws, this often provoked backlash from developed countries. An international instrument could provide a remedy to this solution.
The final presentation came from Professor Ruth Okediji, Jeremiah Smith. Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center (from min. 54:10 to min 01:10:30 in the recording). Professor Okediji praised the new EU exceptions for “restructuring the importance of copyright law for education” and for taking us back in alignment with what copyright law was first envisioned to do. Education, according to Okediji, had been the initial focus and objective of the copyright system, as highlighted by the first formal copyright act, the Statute of Anne. She suggested that the new EU model can be seen as “an investment in a global copyright law of the future, responsible and dynamic enough to the needs of the Global South and the Global North”, one that will advance the discourse and prepare us for what education will look like in the future.
In her presentation, Professor Okediji reflected on the kinds of designs and mechanisms “that will be required for us to begin to see a more nurturing copyright system globally”. She recalled that access to protected materials for educational purposes, contrary to simple access to information, requires the capacity to use materials in ways that are dynamic, unprecedented and that try to keep up with the pedagogic needs that keep evolving. This, she said, suggests that educational L&Es that are discrete, simple and explicit, while providing certainty, might not be dynamic enough to adjust to the reality of the modern classroom and an increasingly digitized learning environment. Okediji also called attention to the fact that educational institutions are increasingly diverse and educational uses are not singularly occurring within the confines of educational institutions, which means that tying education exceptions to specific education institutions (as in the EU model) is a fairly conservative approach.
Finally, Professor Okediji drew some considerations on the option given by EU lawmakers to EU Member States to give precedence to licenses over the education exception. She highlighted some of the problems that come with licensing (determining the necessity for a license, locating the copyright owner, identifying what license intermediaries might also impose, negotiating a license) and cautioned that L&Es should not become “a lever for creating inequality amongst educational institutions”. After all, she added, “not every country has well-funded education institutions, not every institution will be able to compete in the network of licenses that are made available, and copyright owners of non-educational content that we want to use for educational purposes have little to no incentive to create (licenses)”. She concluded that, while the EU model takes a step in the right structural decision (i.e. “mandatory exceptions to ensure that there’s access to the public provision of education for all people across the globe”), it introduces new dynamics that will “require us to maintain vigilance around the structure and around the mechanisms of navigating access for educational and research purposes.” (Note: Professor Okediji’s rich intervention can hardly be summarized in a blog post and to those would like to dive deeper into the topic we recommend a couple of her papers – here and here – on the subject).
The interventions were followed by a discussion with the panelists (from min. 01:10:33 onwards). Some highlights of the discussion include the answer of Professor Okediji to the question of whether there are merits in having a mandatory exceptions regime on a global scale. She said that “certainly on the provision of public goods, such as education or scientific research, a mandatory exception immediately puts some stakes in the ground about what is a non-negotiable public interest and so as a signaling mechanism I think it is important”. For her, the challenge in constructing a regime that would make more sense for the provision of a public good would be to formulate the rules around what countries can and cannot do in that implementation process. It would be important, for instance, to prohibit contractual and technological overrides and also to specify the conditions under which a use is compensated or not compensated “because a mandatory compensation that requires compensation may be just as bad as a no-mandatory or no exception at all”.
Giorello underlined that the challenge, from his perspective, in having an international regime for exceptions is not so much the mandatory aspect of it (i.e. requiring WIPO member states to introduce exceptions in their national laws), but the application of the national treatment principle to exceptions. In his words, “the ‘raison d’être’ of lawmaking on copyright at the international level is to have a national treatment mechanism.” He recognized that it is not impossible to apply the national treatment principle in the area of exceptions. This has been done already in the context of the Marrakesh Treaty. However, the Head of the Copyright Unit noted that discussions at WIPO on mandatory exceptions at the international level are so difficult, at the technical and practical levels, because of such principle. The mutual recognition of national exceptions and the impact on the market of cross-border exchanges of content that is protected by national exceptions is apparently what has been holding the EU from moving forward with these discussions at the international level. Yet Giorello recognized that the Commission has not explored this issue from the perspective of the EU institutions and their need to engage in cross-border activities outside of the EU region, and added that it would be interesting to explore the issue further.
For Professor Okedij, education is a global cross-border endeavor and therefore we need to make sure that the capacity for that is not hindered by copyright law. This means that the “mandatoriness” is a start, but it is not enough; we need to think about the cross-border implications of such activities. Mechanisms such as safe harbors for education, in her opinion, have a role to play in permitting cross-border sharing and dissemination activities that might trigger infringement lawsuits. She further suggested that, as we go forward with the discussions at WIPO, an incisive instrument that would combine an upgrade of the Berne Appendix, an update of some of the norms from the Tunis Model Law and some of the converging norms around cross-border uses of copyrighted materials, would further advance the vision of the Berne Convention that copyright is an important tool to build our democracies and to build the possibility for human growth and development.