Jusletter IT

The teaching exception could be regarded as «traditional»² public interest exception.³ Its general regulatory aim is to «reconcile the legitimate interests of the right holders with the wider goal of access to knowledge.»⁴ The adequate promotion of learning and culture should be achieved by protecting the works through exclusive rights and at the same time permitting certain exceptions therefrom in the «public interest for the purpose of education and teaching».⁵ The European copyright framework currently provides for such exception of the author’s right of reproduction, communication to the public and distribution in Art. 5(3)(a) of Directive 2001/29/EC (Information Society Directive further referred to as «ISD»).⁶ The Art. 6(2)(b) and 9(b) of Directive 96/9/EC (Database Directive) further contain limitations of the rights granted to the author of the structure of the database, respectively of the sui generis rights of the database maker. A similar provision is included in the Art. 10(1)(d) of Directive 2006/115/EC (Rental Right Directive) for rights related to copyright. For computer programs a similar exception does not exist [Hilty/Lotte 2016, 36].

The ISD teaching exception is not mandatory⁷ and allows using the protected subject matter for the sole purpose of «illustration for teaching». Furthermore, the source, including author’s name, must be indicated in order to respect the paternity right. Finally, the extent of permitted use must be «justified by the non-commercial purpose to be achieved.»⁸

The facultative nature of the exception and its relatively vague wording⁹ led to fundamentally different implementations in the Member states.¹⁰ As was aptly summarized by Papadopoulou [2010, 20–21] these incoherent implementations lead to two negative effects. Firstly, it did not achieve the desired level of harmonisation. Secondly, due to the territoriality of copyright protection, transnational (cross-border) teaching activities are immensely complicated – materially similar acts could be treated differently in different states, i.e. qualified as illegal or not.¹¹ Westkamp et al. [2007, 50] also expressed their doubts, whether such a system is actually «capable of adapting to the constant technological developments so as to allow educational institutions to step into the 21st century and engage in distance education programs».

This sceptical view was gradually taken up by the Commission that identified it as a potential «brake on education trends».¹² In order to alleviate the legal uncertainty and the above identified negative effects,¹³ the Commission proposed a specific and tailored exception for digital and cross-border teaching activities in the in the Art. 4 of the Digital Single Market Copyright Directive¹⁴ (further referred to as «DSMD»).

This brief paper critically examines this proposed exception in the next part. The normative text and its features, namely the scope of application (beneficiaries and allowed uses), remuneration and the issue of licence priority¹⁵ are discussed. Next, the changes proposed by the respective European Parliament Committees¹⁶ are quickly presented and evaluated. Finally, suggestions for better regulation of the exception that will make it more fit for the digital teaching era are offered. The last part concludes and sketches out the possible future development of the issue. From a methodological point of view, this paper follows the «micro-legal question» approach (Siems 2008, 148–152).

The general aim of the EU legislative intervention in this area is to «facilitate digital uses of protected content for education» that should consequently contribute to «digital innovation in education».¹⁷ This aim should be achieved by adapting the current rules on copyright exceptions to enable digital and cross-border use of the protected subject matter. As result, the participants in the educational process should be able to «take full advantage of digital technologies at all levels of education».¹⁸ The Commission identified two regulatory approaches,¹⁹ as to how the achieve this goal. The former consists of a «mandatory exception with a cross-border effect covering digital uses in the context of illustration for teaching».²⁰ The latter would also include such an exception; however, it should include the possibility of the Member states to «make it (partially or totally) subject to the availability of licences».²¹ As will be discussed in detail in the next part, the Commission ultimately chose the latter approach.

The proposed Art. 4(1) DSMD stipulates that the Member states are obliged to introduce an exception or limitation to the exclusive author’s rights of reproduction and communication to the public²² in order to «allow for the digital use of works […] for the sole purpose of illustration for teaching to the extent justified by the non-commercial purpose». The purpose limitation and non-commercial character of this exception is similar to the ISD teaching exception. The recital 16 DSMD demonstratively mentions that the use of protected subject matter could consist «in use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities». This is a significant change to the ISD, which does not elaborate on the allowed extent of the use. Interestingly, in recital 15 DSMD the Commission proposed the broadening of the use for teaching also to cover use during examinations – an activity that is currently deemed [Lewinski/Walter 2010, 1043] to be out of the scope of the ISD teaching exception. Furthermore, in order to be allowed, the use can only take place «on the premises of an educational establishment or through a secure electronic network accessible only by the educational establishment's pupils or students and teaching staff».²³ The obligation of source identification remains the same as in the ISD teaching exception. According to the recital 15 DSMD the exception should benefit all non-commercial teaching activities by «educational establishments in primary, secondary, vocational and higher education.»

Next, it allows Member States to phase out the exception in cases where adequate licences authorising the uses «are easily available in the market».²⁴ In accordance with the current case law of the Court of Justice of the European Union,²⁵ these «licences» should be understood as licensing offers, not already concluded licences by the educational establishment [Hilty/Lotte 2016, 38]. This provision would actually mean that the teaching exception might be also subjected to the availability of licensing offers from commercial subjects, or to the regime of extended collective licensing. After the CJEU’s Soulier and Doke²⁶ decision, the last option however remains legally very doubtful.²⁷ According to Art. 4(2) DSMD), the Member states should however ensure the such licensing offers are available in an appropriate way and visible to the educational establishment.

Next, the Commission’s proposal addresses the issue of cross-border teaching through secure electronic networks in Art. 4(3) DSMD by introducing the territorial fiction – this means that the copyright-relevant use «shall occur solely in the Member State where the educational establishment is established».²⁸

The flaws of the initial proposal were criticized both by the NGOs [e.g. Nobre 2016] as well as academia [Hilty/Lotte 2016, 37–39]. The basic criticism is directed against the duality of the «teaching exception» regulation, i.e. for analogue uses in ISD and for DSMD for digital and cross-border uses. The Commission simply states in the recital 5 DSMD that these two should simply coexist. Due to the fact that the general preconditions (purpose limitation for «illustration for teaching», «non-commercial character») are not further defined in the DSMD²⁹ the interpretational problems identified in the respective studies dealing with ISD [see e.g. Lewinski/Walter 2010, 1041–1045] are further perpetuated to the new suggested legislation. Next, the digital use is limited only to «premises of the educational establishments».³⁰ This effectively negates the possibility to use the protected subject matter digitally outside the brick-and-mortar premises of the school. Alternatively, the protected subject matter could be used «through a secure electronic network accessible only by the educational establishment's pupils or students and teaching staff»,³¹ therefore the popular Massive Open Online Courses are not covered.³² Probably the most controversial and criticized feature of the Commission’s proposal is contained in the second paragraph of the Art. 4 DSDM, i.e. the licence priority. The facultative nature of this possibility to limit the application of the licences would simply lead to further disharmonization of the regulatory framework [Hilty/Lotte 2016, 37]. Also, the need to license the uses for teaching have been identified as simply too costly for the educators.³³

The lead JURI Committee presented its amendments to the Commission’s proposal in the Draft Report of 10 March 2017.³⁴ Rapporteur Therese Comodini Cachia³⁵ suggested several amendments to the wording of the Art. 4 DSMD and relevant recitals. As regards to the beneficiaries suggested the addition of the accreditation by the respective national authority of the educational establishment or the educational programme.³⁶ Consequently only the formal education should benefit of this exception. The JURI Draft report furthermore suggests a definition of «teaching activity» that should be understood as an «educational process taking place either on the premises of» an accredited educational establishment or «within the framework of» an accredited educational programme.³⁷ Next, it actually removes the precondition of «non-commercial» and substitutes it with «education» purpose of the teaching activity.³⁸ Only this purpose should therefore justify the extent of the permitted use. This proposal for amendment is to be welcomed, as it respects the modern ways of teaching. On the other hand, JURI did not remove the possibility of the Member States to make use of the «licence priority».

The JURI Draft report was met with lukewarm response from the NGOs. Communia Association – one of the most active NGO in the area of education – expressed its critique regarding the addition of the accreditation requirement and also criticized it as a missed opportunity to remove the controversial «licence priority» issue [Communia Association 2017]. The NGO Copyright4Creativity [2017] on the other hand simply stated that it looks at the educational process «in a more ‹close-to-reality› manner».

The IMCO Committee Opinion, for which Catherine Stihler acted as the rapporteur, was published on 14 June 2017.³⁹ The general tendencies of IMCO opinion in the area of teaching could be summed up as follows. The exception should support not only formal, but also informal education, and not only in accredited educational establishments, but also in further organisations, such as libraries or other cultural heritage institutions.⁴⁰ Correspondingly, the use must take place on the premises of the educational establishment, as well as «other venues, such as cultural heritage institutions, involved in teaching activities».⁴¹ Next the IMCO Committee, in our opinion correctly, tried to unify the already existing ISD teaching exception with the newly proposed one entitled generally «Use of works and other subject-matter in teaching and educational activities».⁴² Therefore, the mandatory teaching exception should cover both analogue as well as digital teaching and thus avoid the regulatory «duality» of the teaching exception.⁴³ Moreover, the purpose for which the protected subject matter might be used includes not only «illustration for teaching», but also «educational purpose».⁴⁴ This change is in our opinion to be welcomed as it reflects more the reality of modern teaching. As regards to the issue of «licence priority» the IMCO opinion again takes a rather progressive approach, as it adds another protective feature for the educators. The Member States might limit the application of the exception only if the extended collective licensing agreements are available and affordable. What seems like a positive feature will be according to our opinion yet another source of legal uncertainty – namely the quantification of the affordability. Also, the right of the right holders to grant costless licences is ensured.⁴⁵ This proposal for amendments therefore positively ensures the development of the so called «Open Educational Resources».

The Opinion of the ITRE Committee⁴⁶ included also non-digital uses into the teaching exception and therefore voted against the two regimes of regulation.⁴⁷ The Committee also proposes an expansion of the group of beneficiaries. Specifically, also «certified educational programmes recognised by the Member State» and «cultural heritage institutions and research organisations» pursuing non-commercial educational activities should be able to fall under this exception.⁴⁸ Such broadening of the group of beneficiaries is to be welcomed as it reflects also the various new modes of educational possibilities. As a new addition,⁴⁹ the teaching shall take place at a «learning space» (not «on the premises» as foreseen by the DSMD) of the beneficiaries and by the «registered learners». The available licences might again be used by the Member states to partially and fully phase out to the exception. Therefore, there is no change to the basic modus operandi of the licences proposed by the Commission. At least, the licences (i.e. licensing offers) should be available and visible «through an easily accessible database».⁵⁰

The CULT OPINION⁵¹ of 4^th September 2017 could be regarded as a «mixed bag», containing both positive, as well as negative elements. As regards to the beneficiaries, the CULT Committee slightly enlarges the group by adding the «entities certified by the Member States to carry out a teaching activity».⁵² Next, the CULT Opinion proposes the possibility for the Member States to introduce quantitative restrictions on the allowed use.⁵³ This would however in our opinion lead to substantially diverging national regulations and not provide for legal certainty. The «licence priority» is still upheld in the CULT Opinion and the Member States should also actively encourage the licensing dialogue among the stakeholders.⁵⁴ The CULT Committee at least proposed the introduction of a simple tool (i.e. single portal or database) that should list all the available licensing options for the beneficiaries.⁵⁵ If such a licence is not listed on this tool, the beneficiary could rely on the statutory teaching exception. Unlike in the initial Commission’s proposal, the remuneration for exception should be compulsory.⁵⁶ In conclusion, the CULT Opinion creates a rather complicated system with two streams of revenue for the right holders. The former being the direct contractual licensing, the latter being the statutory remuneration for the allowed use. It remains also unclear who shall be directly responsible for the payment – probably the educational establishment. In the end, both the revenues would be largely paid by the respective Member States and therefore would be a burden on the state budget [Tarkowski 2016; Tarkowski/Nobre 2017]. However, the CULT Committee sees its proposal through, as it at least makes the exception immune to contracting-out.⁵⁷ The CULT was met with fierce criticism by Communia Association [Tarkowski/Nobre 2017]. The main focal point of the critique being the intensive «licence priority» for the reasons mentioned above.

As a general remark it must be noted that the artificial separation of exceptions based on the nature of the use (i.e. digital or analogue) increases legal complexity. The introduction of a new exception allowing the use of protected subject matter specifically and only for «digital use» and «cross-border» activities is not advisable. Any other approach directly contravenes the aims that are sought by the introduction of the DSMD and does not provide for much legal certainty. Therefore, a complex regulation in one mandatory exception for teaching both digital/analogue as well as online/offline is preferable, as was suggested by the IMCO Committee. This could draw from the existing ISD teaching exception, which is neutral as regards to the means and technology of the use.⁵⁸ The ideal suggested regulation should address the issues of scope of application, group of beneficiaries, licence priority and remuneration. The exception should allow any use of the protected subject matter for the purpose of education (i.e. not only for «illustration for teaching»), by informal/formal educators (including cultural heritage institutions) and not only on the premises of the educational establishment. The use should be limited to the «circle of those taking part in the teaching», as also suggested by Hilty and Letto [2016, 41].

However, any well-crafted exception is of no use if it could be phased out by the Members states with the licences (i.e. licensing offers). The licensing option would also mean a substantive burden on the state budget, which could be allocated more effectively [Tarkowski 2016]. Therefore, together with «Better Copyright for Education» Initiative,⁵⁹ we suggest the removal of the reference to licences and opt for the initial Option 2 of the Commission’s proposal (i.e. no contractual licences and only broad statutory exception).⁶⁰ Also, we opine that the status quo of the current ISD teaching exception (that is largely unremunerated in the Member States) should be also be perpetuated into the digital environment and cross-boarded teaching activities.

In this paper, we tried to identify the flaws of the initial Commission’s proposal that would further lead to diverging implementation results, and consequently to failure of harmonization of the teaching exception. The analysed Opinions of the respective Committees tried to modify the initial wording to some degree, both in negative as well as positive ways.

We suggested the basic principles of the ideal teaching exception regulation that should provide for legal certainty and should be fit for the digital age. Namely, the exception should also allow use not only for the purpose of «illustration for teaching», but for educational activities in general which also include active engagement with the protected subject matter. Next, the group of beneficiaries should include also informal educators (e.g. cultural heritage institutions) and the education activities should be also allowed to take place outside of the premises of the educational establishments. A broad and technology neutral regulation of the exception not hindered by the possibility of commercial licensing options might be regarded as the «future» of the digital and cross-border teaching activities.

At the time of the writing of this paper, the JURI Committee did not cast its final vote on the Final report.⁶¹ It remains to be seen whether or to what extend the opinions of the respective Committees will be reflected. The regulation entailed in the initial Commission’s proposal in our opinion does not achieve the desired aim, namely, to «provide clarity on the scope of the EU exception for ‹illustration for teaching›, and its application to digital uses and to online learning».⁶² Therefore, we conclude that the proposed wording of the exception could be regarded as the dead end, rather than the future of allowed copyright-relevant uses of protected subject matter in education.

Bechtold, Stefan. In: Dreier, Thomas/Hugenholtz, P. Bernt (Eds.), Concise European Copyright Law, Second edition, Alphen aan den Rijn Kluwer Law International, 2016, pp. 421–490.

Communia Association, JURI rapporteur proposes to fix most egregious flaws of the copyright reform proposal. In: COMMUNIA. https://www.communia-association.org/2017/03/20/lead-mep-proposes-fixes-egregious-flaws-copyright-reform-proposal/, 20 March 2017.

Copyright4Creativity, JURI Report on Copyright in the Digital Single Market: Bringing back the user and common sense in the debate…up to a point. In: Copyright4Creativity. http://copyright4creativity.eu/2017/03/20/juri-report-on-copyright-in-the-digital-single-market-bringing-back-the-user-and-common-sense-in-the-debate-up-to-a-point/, 20 March 2017.

Dreier, Thomas, Berne Convention for Protection of Literary and Artistic Works (Berne Convention). In: Dreier, Thomas/Hugenholtz, P. Bernt (Eds.), Concise European Copyright Law, Second edition, Alphen aan den Rijn Kluwer Law International, 2016, pp. 7–92.

Dusollier, Séverine, PART II: Exceptions in the digital environment. In: Triaille, Jean-Paul, Study on the Application of Directive 2001/29/EC on Copyright and Related Rights in the Information Society (the «Infosoc Directive»), European Commission, Brussels 2013, pp. 241–414. DOI:10.2780/90141.

European Commission/Directorate-General for Education and Culture/Public Policy and Management Institute, Assessment of the impact of the European copyright framework on digitally supported education and training practices – Final Report, Publications Office, Luxembourg 2016, pp. 207. http://bookshop.europa.eu/uri?target=EUB:NOTICE:NC0115883:EN:HTML.

Gera, Matej, A tectonic shift in the European system of collective management of copyright? Possible effects of the Soulier & Doke decision, European Intellectual Property Review, volume 39, issue 5, pp. 261–264.

Hilty, Reto M./Lotte, Ricarda, Chapter 2: Digital and Cross-Border Teaching Activities (Article 4 COM(2016) 593 final). In: Hilty, Reto M./Moscon, Valentina. Modernisation of the EU Copyright Rules – Position Statement of the Max Planck Institute for Innovation and Competition. Max Planck Institute for Innovation and Competition Research Paper 17-02. Max Planck Institute for Innovation and Competition, Munich 2017, pp. 35-44. DOI: 10.17617/2.2470998.

Kur, Annette, Of Oceans, Islands, and Inland Water – How Much Room for Exceptions and Limitations Under the Three-Step Test?, Richmond Journal of Global Law & Business, 2009, volume 8, issue 3, pp. 287–350. http://scholarship.richmond.edu/global/vol8/iss3/3.

Lewinski, Silke von/ Walter, Michel M, Information Society Directive. In: Walter, Michel M./Lewinski, Silke von (eds.), European Copyright Law: A Commentary, Oxford University Press, Oxford 2010, pp. 921–1141.

Nobre, Teresa. Commission’s proposal on education: the devil is in the details https://www.communia-association.org/2016/12/05/commissions-proposal-education-devil-detail/, 5 December 2016.

Papadopoulou, Maria Daphne, Copyright Limitations and Exceptions in an E-Education Environment, in European Journal of Law and Technology, 2010, volume 1, issue 2, pp. 1–33. http://ejlt.org/article/view/38.

Sganga, Caterina, The eloquent silence of Soulier and Doke and its critical implications for EU copyright law. Journal of Intellectual Property Law & Practice, 2017, volume 12, issue 4, pp. 321–330. DOI:10.1093/jiplp/jpx001.

Siems, Mathias M., Legal Originality, Oxford Journal of Legal Studies, 2008, volume 28, issue 1, pp. 147–164. DOI:10.1093/ojls/gqm024.

Tarkowski, Alek, Education and copyright: we were promised an exception but are offered licenses instead In: COMMUNIA. https://www.communia-association.org/2016/09/02/education-and-copyright-we-were-promised-an-exception-but-are-offered-licenses-instead/, 2 September 2016.

Tarkowski, Alek/Nobre, Teresa. CULT Committee wants educators to pay for content that they now use for free. In: Communia. https://www.communia-association.org/2017/07/19/cult-committee-wants-educators-pay-content-now-use-free/, 19 July 2017.

Westkamp, Guido, Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society - Part II The Implementation of Directive 2001/29/EC in the Member States, European Commission, Brussels 2007. http://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study-annex_en.pdf.

Westkamp, Guido/Guibault, Lucie/Rieber-Mohn, Tomas, Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, Institute for Information Law, University of Amsterdam, Amsterdam 2007. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2006358.