The Copyright for Education online event will take place on Thursday, 29th of October, at 13.00-14.15 UTC. You can register for the event here. Registered participants will receive a Zoom link on the day of the event.

We are inviting to this session educators, copyright scholars, activists and educational stakeholders. Our speakers include Meredith Jacob (PIJIP / Creative Commons USA, USA), Teresa Nobre (Communia Association, Portugal) and Allan Rocha de Souza (UFRRJ, Brazil) and will be moderated by Alek Tarkowski (Communia / Centrum Cyfrowe Foundation, Poland).

Debates about copyright reform, as seen from the perspective of educational stakeholders, often concern adjusting the law to the requirements of digital education. During the pandemic, we all experienced a sudden shift to digital, remote education. Did current copyright law prove to be fit for purpose, or did it become an obstacle to teaching and learning? What kind of copyright law do we require to support resilient education during the ongoing pandemic?

In this session, we want to highlight the growing importance of strong educational exceptions that are necessary for effective and resilient remote education. Our speakers will present perspectives from around the world and cases of different educational contexts and legal systems. We will also discuss ongoing legislative processes – such as the implementation of the new European Copyright Directive or ongoing policy debates at WIPO.

The post Copyright and education: new approach for the time of the pandemic appeared first on COMMUNIA Association.

We believe that cultural policies, to be fit for their purpose both today and in the years ahead, need to be based on an updated vision of the role of digital heritage for Europe’s societies. We need strategies that support the creation of social, cultural, and economic value based on Europe’s heritage. This is especially true in 2020, when during the Covid-19 pandemic the value of digitised cultural heritage for our societies became clearly visible. Yet it was also a time when many of the cultural heritage institutions faced a crisis.

We need an approach to cultural heritage that recognizes its value to the society and ensures the resilience of cultural heritage institutions and the cultural sector.

Below you will find highlights of the issues that we raise in our response. You can also download the full response as a PDF file.

From the Digital Single Market to Shared Digital Europe. We need a policy framework, which acknowledges that digital and cultural policies should achieve more than just economic outcomes.

A broad definition of cultural heritage. European cultural policy needs to adopt a broad view so that it covers born-digital content, user-generated heritage or contemporary content stored in archives of public broadcasters.

Europe needs public, cultural infrastructure. Building on the success of Europeana, Europe should explore how to further develop public infrastructure that ensures availability, access to, and the possibility of reuse of cultural heritage.

From preservation and access to digital transformation. Policy goals cannot be limited to just preservation and providing access. Success will be achieved only if heritage is accessed and used.

Implementation of the Copyright in the Digital Single Market Directive and the need for more harmonisation of European copyright law. The provisions of the DSM Directive come in response to more than a decade of calls from Europe’s cultural heritage sector to adapt the EU copyright rules to the realities of the digital environment. It will now be key to ensure that these provisions will be properly implemented.

Improving rights information infrastructure. Much of the copyright issues faced by cultural heritage institutions are rooted in a lack of easily available and reliable rights information. The European Union should invest in the creation of trusted repositories. EUIPO could possibly maintain a  comprehensive repository for rights information.

Retract the Orphan Works Directive. More than 5 years after its entry into force it is abundantly clear that the 2014 Orphan works Directive is a failure that did not have any meaningful impact on the digitization of cultural heritage in the EU.

The post Our response to the EC consultations on digital technologies and the cultural heritage sector appeared first on COMMUNIA Association.

In the consultations, the European Commission is referring to the “Recommendation on the digitisation and online accessibility of cultural material and digital preservation”, from 2011.  Almost a decade has passed since then, and large amounts of heritage have been digitised. The term “digitisation” has been replaced with the idea of digital transformation. At the same time, barriers and challenges to access and reuse still remain – heritage in digitised form is a potentially underused resource.

During the salon, we want to ask representatives of key stakeholders from the heritage sector: what are the effects of digital technologies on the cultural heritage sector, and how should we shape them with appropriate policies? With regard to copyright regulations, we want to discuss wheter the reform went far enough, and whether it struck the the right balance? We also want to consider whether any other policies are needed for Europe to fully benefit from digital heritage?

Join us for a debate moderated by Alek Tarkowski (Communia / Centrum Cyfrowe), with the participation of Paul Keller (Communia / IViR), Ariadna Matas (Europeana), Hessel van Oorschot (Open Nederland / Tribe of Noise) and Brigitte Vézina (Creative Commons).

The Salon is open for everyone to attend and will be held on Zoom. Join us on Thursday, the 17th of September, at 1530 CET, by registering here. Registered participants will receive login information ahead of the event.

The post Communia Salon 2020/4: Which digital policies work for cultural heritage in 2020s? appeared first on COMMUNIA Association.

We would like to provide here an overview of the Dutch proposal to implement locally the new EU educational exception (article 5 in the final version of the Directive). This is the beginning of our effort to track how countries across Europe will implement, over the coming two years, this mandatory exception to copyright for educational purposes.

We are in particular interested in three issues that have been our concern during the legislative debate on this exception:

• Are Member States introducing the controversial article 5(2), through which they have the option to make the exception no longer applicable and available to educational establishments if “suitable licenses are easily available on the market (what we call the issue of “license priority”);
• What is the scope of the exception:
  • How are educational institutions and staff defined?
  • Will the educational community be able to rely on email, cloud services and other password-protected environments, or will these not be considered “secured electronic environments” under the exception?
  • Will Member States define a priori the extent to which a work can be used, leading to different quantity limits in different countries, or will they let practice and courts (relying on the three-step test) define what is balanced in a given situation?

Choices made on these issues will determine, how broadly – or narrowly – can the exception be depended on. Taken together, they will also create either a harmonized or fragmented legal landscape for teachers and learners across the Union.

• Are Member States changing remuneration rules for educational uses? Currently, 17 Member States do not remunerate most or all of the used permitted under their existing education exceptions – will this change with the new exception?

The Dutch proposal is a simple amendment that adds two paragraphs to the existing educational exception (article 16 of the Dutch Copyright Law). In relation to our issues of particular concern, we note that the Dutch government:

• decided not to use the article 5(2) backdoor to hack the new educational exception and make it partially or fully not applicable in the Netherlands, which we applaud (because we believe – along with the CJUE – that users should have the right to benefit from the copyright exceptions that were created for their benefit at all times, and not only when there are no market options for them to get a license for those minimum uses that are protected by the exception);
• could do more to provide as broad a scope for the exception as possible, within the boundaries set by the Directive;
• has proposed not to change its approach to remuneration – use of content under the exception requires fair compensation (art. 16.1.5°).

Additionally, the proposal includes an explicit provision against contractual override (art. 16.6), which implements another important element of the new EU educational exception.

We will be working with our Dutch partners in the consultation phase, both to provide feedback on the government’s proposal, and to monitor other responses to the proposal. The consultations are open until 2 September 2019.

The post The Netherlands leads way with implementation of the new educational exception appeared first on COMMUNIA Association.

In general, any direction on this piece of regulation seems to be lost, with actors participating in the trialogue willing to treat the article like a puzzle, in which puzzles can be rearranged in any way possible – beyond the scope of any previously negotiated and legitimized mandate. The process once again proves to be obscure and lacking with regard to basic rules of participatory policymaking.

The Commission was given several guidelines. These include an assumption that platforms do communicate to the public and need to obtain licenses or that automatic blocking should be “avoided as much as possible”, but is also not forbidden.

Earlier this week, we published four principles, based on which we plan to evaluate the proposed language for article 13. We believe that any version of Article 13 that does not take these four principles into account will need to be rejected in the final vote taken by the European Parliament.

We decided to check the Commission’s proposal, included in the non-paper against our principles. This has been made difficult by the fact that what is proposed in the non-paper is in many ways vague. Once it becomes more substantial, we will be able to make a definitive judgement. But even now, lack of details on some issues – such as protection of content fitting copyright exceptions from overfiltering – is telling.

1. The Scope of application must be as narrow as possible

The Commission proposes a gradual approach that differentiates platforms. The non-paper states that availability of non-licensed, copyright protected content should be achieved through cooperation between platforms and relevant rightsholders. Such cooperation should take into account size of the service, number of uploaded works, potential economic cost, availability of effective and suitable technologies and their cost for service providers.

This is nothing new – such a gradual approach has been present in most versions of article 13. The proposal lacks a stronger limitation, which could be introduced by a reduction of scope – in particular the narrow application that we present in our 1st principle. – The 1st principle is not met. (also note the well known language on “effective and sustainable technologies”,  which would again opens the doorway to content filtering by at least some OCSSPs).

2. Do not introduce general liability exposure

This principle is almost met by the Commission’s proposal, which states that platforms “would in general not be liable if they have cooperated in good faith”. Yet the option of general liability is considered in cases, when the sharing of content has caused significant economic harm. – The 2nd principle is not met.

3. Any content filtering and removal must respect user rights

Lip service to this rule is made by the Commission by stating that “Content that does not infringe copyright, for example because it is covered by exceptions, should stay on the services’ websites”. We are not satisfied by such a statement, which lacks any detail about measures that will encourage – or force – platforms and rightsholders cooperating on removal of infringing content to seriously treat exceptions. “Robust redress mechanism”, which gives users ability to contest measures are not enough. We believe that meaningful damages for unjustified content removal or blocking are necessary. The 3rd principle is not met.

4. Measures must be transparent and accountable

The Commission does not propose any measures that provide transparency or accountability. To the contrary the commission’s proposal introduces arbitrary categories like “high” and “low” value content that would make any blocking or removal even less transparent to users and creators. – The 4th principle is not met.

So our overall judgement is clear – the Commission’s proposal does not meet the four criteria that we have defined.

Towards a User Generated Content Exception?

There is one additional issue worth pointing out, which related to something that we have been calling for since the beginning of the reform process. The need for a User Generated Content exception.

The non-paper states that the “minor uses of content by amateur uploaders should not be automatically blocked”.  This is a curious statement for a document that purportedly does not recommend automatic filtering (why then propose an exception to automatic filtering?). Even more interestingly though this could be read as an indirect acknowledgement of the need for a UGC exception. If the Commission really wanted to give “amateurs” that make “minor uses of content” legal security, then it should support the proposal to introduce an UGC exception. Such an exception, when properly enforced, would give users a much stronger protection than what the Commission now proposes.

The post To block or not to block? Commission’s vague “non-paper” does not meet our minimal standard appeared first on COMMUNIA Association.

The event marked for us an important opportunity to discuss with education stakeholders how copyright law can support sound educational policy. This been the goal of our Copyright for Education project, initiated two years ago. Through this project, we have been aiming to strengthen the visibility and position of education stakeholders in the copyright reform debate – in particular with extent to issues like the education exception, which affects them directly.

This joint initiative was coordinated by ETUCE, also with the goal of lobbying for good copyright for education during the vote in the European Parliament on 20 June. The shared conclusions from the conference partners stress that:

#1: A genuine copyright exception

Educators would benefit from an EU-wide education exception – without mandatory remuneration – , which educators can rely upon across the European Union and which defines a minimum standard. Removing copyright restrictions on the digital use of illustrative materials including textbooks for educational purposes would increase legal certainty as this would reduce the financial burdens on education systems and institutions.

#2 Copyright and social dialogue

The European Commission should ensure that social partners are consulted in the national implementation of the EU copyright directive. The selection of works for teaching and learning as well as related quality assurance measures need to take place at national level, as this is an exclusive national competence of Member States.

#3: Balance between the rights of teachers as users and the rights of teachers as creators

The new EU-wide exception should balance the rights of creators and users. Students, teachers, school leaders, researchers and other educational personnel have an interest in fair remuneration and correct attribution as well as in making knowledge accessible for public interest activities including education and research.

#4: Remuneration should not be mandatory

Payments should therefore remain optional and any changes to this model should be subject to consultation with the respective Ministries of Education.

#5: Closed-door policy

An EU-wide exception for non-commercial educational purposes that cannot be sidelined by licenses and that cannot be overridden by a private contract but that at the same time respects successful national Copyright models in certain EU countries is crucial. An EU-wide exception that includes all relevant providers of education, including libraries and other educational establishments, and an exception that permits the diversity of educational uses – both digital and analogue – of copyrighted content is fundamental.

Read about this joint initiative on the webpage of ETUCE. Read the full joint conclusions.

We would like to thank our partners, ETUCE and EFEE, for this great example of cross-sector, multi-stakeholder collaboration.

The post Last call to push for a good EU copyright reform for education: Joint conclusions from the ETUCE-EFEE-COMMUNIA conference appeared first on COMMUNIA Association.

Mr. Voss defined the general question as defining “when to pay, and when to use copyright protected works freely”. We believe that we will never have good copyright for education if we see it as just an issue of transfer of funds.

This is all about copyright, not education?

In the talks during the event, members of Communia as well as other speakers — representing for instance teacher unions, or educational employers — focused on the broad right to education and educational goals. They spoke about quality of teaching, equity in education, and the rights of teachers as creators.

In turn, even though Mr. Voss began with general declarations on the importance of education for European societies, when mentioning details, he seemed focused on ensuring remuneration for rightholders. We would hope that he would represent a more balanced approach, which should pay attention to supporting educational systems across Europe.

Compensation: schools may or should pay?

Sometimes a single word counts, and we paid attention to the fact that Mr. Voss said that “fair compensation should be provided”. Until now, the compromise amendment included language that left it to the Member State to decide whether to have a remunerated exception or not. Let us remember that today 18 European Member States have an unremunerated exception: educators use works for educational purposes without paying anyone (and the sky has not fallen on publishers and other rights holders). This seemingly innocent shift of wording spells a huge change for more than half of European educational systems.

We were therefore not surprised that Mr. Voss did not address at all the controversial Art. 4(2), which creates a loophole that allows Member States to “turn off” the exception and replace it with licensing schemes. This is one more element that makes sense only if we see this exception as a tool for remunerating rightholders, instead of supporting educators. Art. 4(2) exports across Europe the Scandinavian model, in which all uses are collectively licensed and paid for — a model which is receiving growing criticism even in the Nordic states (as explained last year by Maria Rehbinder at an event in the European Parliament hosted by MEP Marietje Schaake).

Publishers are a small market that needs to be protected?

Mr. Voss mentioned one issue that he feels still needs to be addressed; it turned out to be one more benefit for educational publishers.

The current exception allows educators to use textbooks just like any other resource: a movie, or a painting from an art gallery. All are covered by the exception. We have learned that during meetings at which the shape of the Directive is being finalized, Mr. Voss has recently started arguing for a carveout for educational publishers so that textbooks would not be covered by an exception.

During our conference, Mr. Voss presented the publishing market as “a very small market” — so small and vulnerable that the legislator needs to be very careful with the exception, lest it endangers the publishers.

The “very small market” argument is hard to understand. Publishing is the “largest cultural industry in Europe”, which “shows signs of a new phase of sustainable growth”, according to a FEP report from 2017. Educational publishers have a growing share of the overall turnover, reaching 20% in 2015. And then there is the example of Elsevier — the European educational and research publisher based in the Netherlands, which brought in a profit of almost 1 billion GPB and a profit margin of 36.8% in 2017. This hardly sounds like a small, vulnerable sector that requires special attention from Mr. Voss, the JURI Committee, and the European Parliament.

Tellingly, Mr. Voss did not mention, even once, European teachers, educators and students as the stakeholders about whom policymakers should care. One could get the impression, that the futureproof education in Europe will be ensured solely through publishing efforts and copyright protection.

“This is only a Directive”

Finally, Mr. Voss seemed to present the Directive as a tool that sets general legislative direction, which then will later be defined by Member States. This is simply not true. Member States will indeed transpose the Directive, and in the process often adjust certain details. But the Directive itself, together with the recitals, is a crucial tool for shaping law across Europe. Decisions made by Mr. Voss and the JURI Committee are guaranteed to shape copyright as it applies to education, for years to come. Let’s all make sure that the legislators in Brussels get it right this time.

The post Voss’ unbalanced approach to the education exception appeared first on COMMUNIA Association.

A quick reminder where we are with the copyright reform process in Brussels: the key vote in the JURI committee is continuously extended, and currently is planned for January 2018. The date should be seen as tentative. In the meantime, one more committee – the civil liberties committee LIBE – will make it’s vote in late November (but with a sole focus on the controversial article 13, the content filter article). As we await decisions to be made in the European Parliament, a proposal from the Council, prepared by the Estonian Presidency, has recently surfaced. Unfortunately, it spells one more step towards the licensing chasm for the educational sector.

Enter Extended Collective Licensing

The proposal includes a completely new chapter on “Measures to facilitate collective licensing” – and in it, a single article on “Collecting licensing with an extended effect”. In the Commission’s proposal, extended rights licensing is proposed as means of solving issues around making available out-of-commerce works by heritage institutions (see our previous analysis on the relationship between the new article and the commission’s proposal here) . But let us remember, that extended rights licensing schemes present in Nordic countries for educational uses are also the reason that a carve-out mechanism has been included in the article on the educational exception. As a reminder, Commission has proposed that Member States could “subject the application of the exception or limitation … to the availability of adequate licenses”. It is a clause that we have been criticising during the last year, together with 34 organizations.

The new article, proposed by the Council, serves the purpose of establishing EU-wide legal framework for extended rights licensing by collecting societies. In practical terms, it should be read as an invitation for Member States to adopt such schemes. And once these are in place it’s quite obvious what choice States will make regarding “application of the exception”.

Do not export ECL for education, export the Estonian educational model!

Commentators have been wondering, why Estonia, which fancies itself as a “digital nation”, is supporting during its Presidency copyright proposals that will hinder modern digital economy and society. For example, article 13 – the content filter article – which might break open communication based on online platforms.  The same can be said about education. Estonia, like most Nordic countries, has an impressive educational system. It also has a robust educational exception – the best one in Europe, in our opinion – Estonia scored highest on our copyright for education barometer. No one has provided an answer to this question? Does Estonia want to join the “Nordic copyright for education” club, and replace its exception with an extended rights licensing system? We sincerely hope that is not the case.

We are not against extended rights licensing as such. We share the view that it is a good solution for heritage institutions dealing with out-of-commerce work – another area that is being addressed by the new Directive. Yet a model that works in the heritage sector will not necessarily be a good fit for education. Heritage institutions have only recently – with the advent of digitisation – dealt with the issue of widespread use of works from their collections. In education, there’s a long history of broad use of copyrighted works for educational purposes. Heritage institutions are debating how to make out-of-commerce works available online – there is no comparable debate in the educational sector. It is important not to treat extended rights licensing as a one-fits-all solution – and this seems to be the case in the current Council proposal.

It is not just ECL that is the problem

The proposal includes several other changes that are harmful for the education sector. New language in recital 16 – one that addresses the scope of the exception – strengthens a concept already present in the Directive, that the educational exception should in most cases apply just to excerpts. This is an idea that kills the exception – try teaching students anything based just on half of Hamlet.

Furthermore, looking beyond article 4 – the one that concerns the new educational exception, there are other issues that should worry educators and educational institutions. There is still risk of a new “link tax”, that might force educational platforms to pay money to press – and maybe even scientific publishers. And, most importantly, the content filter will hurt educators publishing content on social media platforms.

Things are not looking good. If you want to help us fight for better copyright for education, please join our coalition. Regarding the content filter, please join the Create.Refresh campaign. And you can follow our blog to get an overview of the rest of the copyright reform process.

The post Estonian Presidency makes one more step towards licensing educational content appeared first on COMMUNIA Association.

Unfortunately, the new Ljubljana OER Action Plan, adopted by UNESCO members at the Congress, does not include actions related to copyright reform. We will continue working with the UNESCO OER policy community to change this.

Educational exceptions, and other issues related to how copyright law regulates education, have traditionally not been considered by the OER stakeholders. The Paris OER Declaration, which was the result of the first UNESCO OER Congress in 2012, failed to see educational exceptions as means of facilitating use and reuse of resources in education.

Our session, titled “Right Copyright for Education Worldwide” aimed to raise awareness about the importance of copyright law, and encourage OER stakeholders to get involved in copyright reform processes around the world. The session was organized in co-operation with the Slovenian Intellectual Property Institute.

The session started with presentations by Delia Browne from the Australian National Copyright Unit and Teresa Nobre from Communia. Delia presented an overview of the global situation regarding copyright law and education. She focused on demonstrating how outdated copyright law constitutes a barrier to modern, innovative education. Teresa in turn presented results of her research project, that analysed legality of 15 everyday educational uses in 15 European Member States (see the report and the infographics from her study).

Afterwards, we hosted a panel of stakeholders and activists from around the world, who highlighted the importance of copyright reform for education around the world. María Juliana Soto from Colombian Fundación Karisma presented the case of Diego Gomez, a student sued for sharing a scientific article online. Diego’s case demonstrates how without proper educational exceptions, and a focus on enforcement of copyright, educators face legal risks for doing their work. Lira Samykbaeva from Soros Foundation Kyrgyzstan reported on a legal reform process with beneficial results for the educational sector: in recent years, Kyrgyzstan strengthened copyright exceptions for educational institutions and libraries, and at the same time introduced a rule stipulating openness of publicly funded OERs. Nikola Wachter from Educational International talked about educational exceptions in the broader context of issues important for teacher unions around the world. She tied copyright reform with her organization’s anti-privatisation agenda.

We were also happy to host Damjan Hirsch from the Slovenian Ministry of Education, Science and Sport. Damjan commented upon the ongoing European copyright reform process and declared interest of his MInistry in securing an educational exception fit for the modern age.

Copyright reform has also been highlighted as one of the “10 directions to move Open Education” forward by the CPT+10 project. 2017 marks the 10th anniversary of the Cape Town Open Education Declaration and on this occassion a group of Open Education leaders and advocates defined 10 key directions for the movement – including greater focus on copyright reform issues.

We plan to work further with UNESCO stakeholders to raise awareness about the issue. We are happy that there is a general focus on “developing or updating legal frameworks to secure legally admissible use and contribution of quality OER”. We hope that within the scope of this action, we can work with UNESCO on securing strong educational exceptions around the world.

The post Can Open Education succeed without copyright reform? Reflections from UNESCO 2nd World OER Congress. appeared first on COMMUNIA Association.

Communia Association is one of the signatories of this letter. We are urging other organisations, especially those active in the fields of Open Access and Open Science, to express their support by signing this letter. Additional signatures will be collected until 1st October – you can sign the letter using this form.

Ancillary copyright extended

Ancillary copyright for publishers, a new right to collect payments and to control the use of headlines and snippets of news articles, has been one of the most controversial parts of the Proposed Directive on Copyright in the Digital Single Market. Both the rapporteur in the JURI Committee and the Estonian EU Presidency currently support this flawed proposal . They do so despite heavy criticism – not just from civil society, academia and libraries, or digital economy companies, but even from some of the Member States.

Press and academic publishers have completely different business models, based on different value creation chains. While press openly publishes content on the Web, academic publishers sell the works of academics at a hefty price, and with a heavy markup. Angelika Niebler, Herbert Reul and Christian Ehler, ITRE members who proposed the amendment that extended the right to academic publishers, have provided no rationale for granting this new right also to academic publishers. They also failed to explain why they are supporting a regulation that will create burdensome and harmful restrictions on access to scientific research and data, as well as on the fundamental rights of freedom of information.

A threat to Open Access

A new right to control and monetise use of snippets of academic articles would significantly limit the sharing of open access publications and data which currently are freely available for use and reuse in further scientific advances. For example, researchers, students and other users of scientific and scholarly journal articles could be forced to ask permission or pay fees to the publisher for including short quotations from a research paper in other scientific publications. The proposed ancillary right further conflicts with the Berne Convention’s Article 10(1), which provides a mandatory exception for quotation, as well as posing risks to freedom of speech.

Support our joint open letter for Open Access and Open Science

Signatories of the letter urge the Legal Affairs Committee to remove Articles 11 and 13 from the draft Directive. Furthermore, the Committee should ensure that Articles 3 to 9 support new forms of research and education and not work against them. Furthermore, we hope that the European Commission, the European Parliament and Member States will chose to uphold Europe’s commitment to Open Science and Open Access.

Please sign the open letter.

The post Proposal for ancillary copyright for publishers threatens Open Access and Open Science appeared first on COMMUNIA Association.