This is the second entry to a series of blog posts highlighting the positive and negative trends in national copyright policy following the DSM implementation. With the implementation process finalised in all but one Member State, we conducted a comparative analysis of the national implementations to understand the impact of our proposals, identify the areas where Member States have varied or converged, and evaluate whether these variations affect the position of users and the Public Domain. The first blog post presented our findings concerning the implementation of research rights. In this follow-up, we share the results of our analysis of the legal landscape for education.
Article 5 of the DSM Directive made it mandatory for Member States to introduce (or maintain) an exception or limitation to copyright giving educators and learners at educational institutions the freedom to use copyrighted materials in digital and cross-border teaching and learning activities.
Member States had some freedom in how to implement this provision. While they had to respect the minimum scope of protection set by the DSM Directive, covering at least the same beneficiaries (educational establishment and its pupils, students and teachers), uses (“digital uses”), purposes (“illustration for teaching”) and subject matter (“works and other subject matter”), they were free to go beyond this mandatory provision. According to Article 25, Member States can adopt a broader educational exception, as long as it is compatible with existing EU law (namely the InfoSoc Directive).
However, national governments also had the option to set more conditions than those mandated by the Directive. Specifically, they could impose quantity limitations and subject the exception to compensation and licence availability.
More digital rights for education than before
Prior to the introduction of this mandatory exception, some Member States had strong educational exceptions while others had only narrow provisions, which oftentimes did not apply outside the physical classroom. This created inequalities in using digitally-supported education within the EU territory, and interfered with cross-border activities. With the DSM forcing a minimum set of rights across the region, those obstacles have been largely removed.
On the national level, the legal landscape for digital and distance education has significantly improved in countries with limited exceptions. The situation is less clear in countries with robust education exceptions, as most Member States implemented the DSM exception alongside their flexible InfoSoc-inspired exceptions. This results in unnecessary overlaps, which in turn makes it more difficult to assess whether those national frameworks remain as broad as before.
Be that as it may, overall the national copyright reforms prompted by the DSM Directive seem to have resulted in digital education exceptions with a broader scope of protection than before. Out of the 26 Member States analysed, only three Member States present a more limited framework for education after the implementation than they used to:
- Scope of digital education exceptions (probably) broader than before: BG, DK, FI, DE, GR, HU, IT, LV, LT, PT, SL, ES, SE
- Scope of digital education exceptions (probably) the same as before: AT, BE, CR, CZ, EE, IE, LU, NL, RO, SK
- Scope of digital education exception narrower than before: CY, FR, MT
Near all national laws broader than the DSM
In addition, the majority of Member States now has a legal framework for education broader in scope than the minimum standard imposed by the DSM.
Twelve Member States have educational exceptions that either extend to more acts of use (e.g. distribution), cover more users (e.g. public institutions, the educational establishment’s technical staff or any user), or apply to more purposes (e.g. research, professional training or lifelong learning) than the DSM. Six Member States have a specific digital and cross-border education exception modelled on the DSM exception and, in parallel, an open education exception that applies to all educational uses by all sorts of users, the only condition being that the use is made for non-commercial educational purposes. And one Member State introduced an open exception instead of following the DSM prototype:
- Introduces open education exception instead of DSM exception: LV
- Introduce or maintain open education exception in parallel to DSM exception: HR, CZ, EE, LU, RO, SK
- Introduce or maintain education exceptions covering more uses, users or purposes than the DSM exception: BE, HR, CY, ES, FR, DE, HU, IE, LT, MT, NL, PT
Digital uses not subject to compensation in most MS
As to the conditions applicable to the new exception, the main focus of Communia during the implementation processes was to advocate against rights holders’ efforts to subject the exception to licence availability and – in Member States with a tradition of uncompensated education exceptions – oppose attempts to subject digital uses to compensation.
We recall that the DSM Directive does not require compensation for uses made under the new exception, but expressly states that Member States are free to subject such uses to the payment of a fair compensation to copyright owners, if they wish to.
Prior to the DSM, eighteen Member States had education exceptions that were completely or largely unremunerated. The DSM implementation led to a change of policy in four of those Member States: Cyprus, Greece, Malta and Slovenia introduced, for the first time, a compensation requirement to their education exceptions. By contrast, a few Member States with a tradition of compensated exceptions opted for not subjecting these new uses to compensation.
In total, seventeen Member States permit the uses covered by the DSM to take place without compensation, two require compensation only for some of those uses, and seven require it for all uses:
- Do not require compensation for uses covered by the DSM exception: BE, BG, HR, CZ, EE, FI, HU, IE, IT, LV, LT, LU, PT, RO, SK, ES, SE
- Require compensation for some uses covered by the DSM exception: DE, NL
- Require compensation for all uses covered by the DSM exception: AT, CY, DK, FR, GR, MT, SL
Some surrendered education rights to licences, others did not
We fiercely opposed the possibility to give preference to licensing offers over the education exception both during the negotiations that lead to the adoption of the Directive and throughout the national implementation processes. A legal framework where a teacher or student’s ability to benefit from the exception can be taken away by copyright owners, once they start marketing licences for those uses, regardless of the amount and purpose of the use, sets a dangerous precedent for users’ rights.
Thirteen of the Member States that have so far implemented the Directive opted to not introduce this condition into their laws. The other half, however, did exactly the opposite: seven Member States subject all uses permitted under the exception to licence availability, and the other six only do so for a limited category of works (teaching materials and/or music scores):
- No uses subject to licence availability: BG, HR, CZ, EE, HU, LV, LT, LU, NL, PT, RO, SK, ES
- Some uses subject to licence availability: AT, BE, DE, IT, ML, SL
- All uses subject to licence availability: CY, DK, FI, FR, GR, IE, SE
What is even more worrying, six Member States (Belgium, Bulgaria, Czech Republic, Spain, France, Hungary) decided to completely carve-out certain categories of materials (teaching materials and/or music scores) from the exception, regardless of whether there are educational licences available in the market for those materials or not. This clearly violates Articles 5 of the Directive, which only allows Member States to switch off the exception for certain uses or materials if and when adequate licences are available in the market. We thus expect the Commission to act accordingly to force those Member States to revise their laws.
While the legal framework for digital education has significantly improved in Member States with previously narrow education exceptions, this copyright reform has also precipitated the importation of licensing schemes to countries with no tradition of educational licences. Some of these countries conceded to licensing schemes only with regards to materials intended for the education market, several however did so with regards to any and all educational uses, which is highly problematic.
Setting thresholds to prevent licences from blocking a minimum set of educational uses is necessary to offer a base level of legal protection for education rights in Europe. Otherwise, over the coming years, educators and learners will benefit from a new education exception only to see it disappear and be replaced by agreements. Replacing exceptions with licences will not only fragment the legal framework the EU lawmaker tried to harmonise, but also – as our study on educational licences show – bring added costs, bureaucracy and surveillance to the education systems and their communities.
On a more positive note, most Member States have gone a few steps further than the EU lawmaker to enhance their copyright framework for education, protecting not only digital education, but also non-digital activities, and benefiting other providers of education, such as public institutions. Considering how rapidly the use of digital technologies in education has evolved in the past few years since the start of the Covid pandemic, these policies are definitely worth replicating across the EU. If the next Commission and Parliament finally decide to put the needs of Europe’s universities and schools front and centre, we hope they will take inspiration from these Member States.
In the next blog post in this series, we’ll focus on the implementation of the public domain protection in Article 14 and give some highlights on the transposition of cultural heritage rights.