(With Teresa Nobre).
Last week, the Committee on Culture and Education (CULT) of the European Parliament voted on its final opinion concerning the Commission’s Directive on Copyright in the Digital Single Market. Copyright law in the shape proposed by the CULT MEPs would spell disaster for educators and educational institutions across Europe.
This post aims to provide educators with an overview of the changes to the draft Directive proposed by rapporteur Marc Joulaud, a French MEP from the EPP group, and then through amendments by the members of CULT. We start with an analysis of two clashing logics visible in the CULT debate, followed by an overview of key decisions made during the vote. We finish with advice on next steps in the ongoing fight to secure an educational exception that meets the needs of educators.
If you want to learn more, we have been covering the policy process from the start, with a focus on how the new law will affect educators.
Copyright and education: two clashing views
There are two clashing viewpoints in the ongoing debate on the new educational exception, and each represents a different approach for how to achieve the goals defined by the Commission in its Communication on the DSM strategy and subsequent Directive. These goals include “facilitating new uses in the fields of research and education” and providing a “modernised framework for exceptions and limitations”—which will result in a situation where “teachers and students will be able to take full advantage of digital technologies at all levels of education”.
According to one view (which we, as COMMUNIA, support), achieving these goals requires a strong copyright exception that covers a broad range of educational uses, and that is in principle not subject to remuneration.
According to the other view, these goals are best achieved through the reliance on licensing mechanisms complimented by narrow, remunerated exceptions. It is in this last direction that CULT’s proposal shifts the Commission’s proposal. It is worth inquiring, what stakeholder groups support such an approach? Pressure to adapt licensing solutions as the norm for educational uses comes not from educators, but from publishers.
At every step of the ongoing debate, publishers’ lobbyists ask for new licensing rights and new forms of payments. While such demands are expected from the commercial publishing industry, they are not beneficial for educators. Educational institutions will face uncertainty with regard to the scope of the exception, and budget strains caused by the need to make licensing payments.
We were expecting the CULT MEPs to strike some type of a balance between the opposing interests of the educational sector and rightsholders. Instead, the Committee has not only failed to fulfill the goals set by the Commission, but have practically dismantled the new educational exception.
How did the CULT MEPs fail educators?
- Who can benefit from the exception?
The Commission proposed a narrow exception, limited to uses made by “educational establishments”. We have been arguing that this exception should be much broader and cover also non-formal and informal education (in line with accepted European educational strategies). The Committee rejected this approach, and limited the exception to “entities certified by Member States”. Depending on national rules for certifying educational institutions, this might mean a small extension of the list of entities that can benefit from the exception. - What uses can be made under the exception?
CULT MEPs decided to significantly narrow the uses covered under the exception by adding language that allows Member States to restrict the amount to which a work can be used. Quantitative restrictions are one of the main sources of uncertainty for educators, who will always need to check if using an entire image or a given fragment of a text still fits within the exception. - Can licensing solutions trump the exception?
The idea that the availability of a licensing option allows a Member State to make the educational exception not applicable has been the most controversial part of the Commission’s proposal. This mechanism was introduced so that Nordic states can continue to rely on so-called Extended Rights Licensing mechanisms, which they have traditionally preferred over exceptions. It was clear to us from the start that through this mechanism the Nordic model could be exported across Europe, which would create new costs for educational budgets. CULT maintained that option and created further obligations for Member States that decide to implement that option. CULT MEPs propose that every Member State will need to actively ensure that appropriate licensing solutions are negotiated and made available. Once they have actively participated in developing licensing options, there will be little to no room for the exception to apply. - Will you have to pay for your educational exception?
The Commission proposal leaves to Member States the decision on whether to  subject the exception to remuneration or not. The Committee voted to make the remuneration mandatory all over Europe. It is as if the licensing options mentioned above did not provide rightsholders with certainty that they will be paid by educators, so CULT has given them one more funding stream. Currently, 17 Member States have exceptions for educational purposes that are completely or largely un-remunerated. In these countries educators can use copyrighted works for educational purposes for free. If the CULT proposal is accepted by the rest of the European Parliament, those educators (or their institutions) will have to start paying for uses that are now free.
Through these four steps, the CULT Committee has significantly strengthened licensing mechanisms at the cost of a robust educational exception. Furthermore, it made all educational uses subject to mandatory remuneration.
How to secure a strong exception for educators in Europe?
In autumn, the JURI Committee will make the final decision on the shape of the Commission’s Copyright Directive. The reports of CULT and other Committees will be taken into account, but the final decision rests with JURI members.
The JURI vote is currently planned for 12th October, so  we have three months to convince the European Parliament that European educators and educational institutions require a stronger exception that is not immediately replaced by licensing options and that does not have to be remunerated.
We made the first step with our RIGHTCOPYRIGHT campaign, which for the first time highlighted views of educators about European copyright. Almost 5000 people signed our petition and expressed their support for a strong educational exception that meets the needs of educators.
But the voice of educators is still not heard enough in Brussels. We need both individual educators, their associations and educational organizations to speak up. They need to make it clear that copyright needs to serve educational goals.
