At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

The post Finally, something to look forward to at WIPO appeared first on COMMUNIA Association.

Today, the A2K Coalition is launching its website with demands for education, research and cultural heritage.

Access to knowledge is not enjoyed equally across the world. Crises, including the COVID-19 pandemic and the climate emergency, highlight the barriers that the current copyright system poses for those who learn, teach, research, create, preserve or seek to enjoy the world’s cultural heritage.

The international copyright system has failed to keep pace with advancing technology and practices, including for digital and cross-border activities. Consequently, we have been unable to seize the possibilities that exist to promote access to, and use of, knowledge to fulfill human rights and achieve more equitable, inclusive and sustainable societies.

The members of the A2K Coalition represent educators, researchers, students, libraries, archives, museums, other knowledge users and creative communities around the globe. Our individual missions are varied but we all share a vision of a fair and balanced copyright system.

In addition to our mission statement and demands, the A2K Coalition website features evidence to substantiate our claims. Three maps track the state of copyright limitations and exceptions for online education, text and data mining, and preservation across most countries in the world. Currently, only the text and data mining map is fully implemented, but the maps for online education and preservation will follow soon. The website is available in English, French and Spanish language versions.

We invite you to explore the A2K website and spread the word about the A2K Coalition.

The post Global Civil Society Coalition Promotes Access to Knowledge appeared first on COMMUNIA Association.

We are attending the 42nd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in Geneva. Today, the Committee is discussing the issue of limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 8) and the following statement was delivered on behalf of COMMUNIA:

Dear Delegates,

It will not be easy to convince your families, friends, neighbours that policymakers from across the world should spend time discussing how to improve copyright exceptions.

There is absolutely no doubt that the restrictions copyright laws pose on access to knowledge and information condition the right to education and the right to research, and that educational and research exceptions would benefit society as a whole. That is what will determine whether teachers can show a short news report during live-streamed online classes, whether researchers can conduct medical research or track desinformation online.

Yet, the fact that copyright laws are hard to understand will be an obstacle to reforming copyright laws at national level. Therefore, when Global North delegations claim that each one of you can go back to your countries and introduce exceptions that work for education and research in the 21st Century, we say: that is easier said than done.

Indeed, if you look at the national exceptions for education and research in the European Union, before the recent EU-wide copyright reform, you will see that not even the EU Member States were investing time in solving these issues if they had not been forced to do so through a binding regional instrument.

It should also be said that the fact that copyright exceptions are now outdated only in the Global South does not make this issue less problematic for the Global North. Institutions in Europe and North America engage in cross-border education and research activities outside of their regions on a regular basis. Think about EU distance education programmes attended by students located in Latin America or international research programmes involving North American and Asian researchers. It is clear that the lack of the same minimum set of rights across the world prevents these cross-border activities from taking place, affecting both the North and the South.

We understand that this Committee is not ready to make a decision on how to positively affect copyright frameworks to actually protect the right to education and research. At the same time, this Committee has been discussing this agenda item for nearly 15 years.

We believe that it is fair to say that the work undertaken by the Committee so far has not had much impact on the copyright provisions that frame how educators and researchers can have access to knowledge and information. The African Group proposal could change the course of action to make the work of the Committee more useful. We, thus, urge this Committee to use its best efforts to reach an agreement on how to move forward towards more positive and impactful outcomes.

Thank you.

The post SCCR/42: COMMUNIA statement on limitations and exceptions for education and research appeared first on COMMUNIA Association.

Today, the Committee is discussing the protection of broadcasting organizations and the following statement was delivered on behalf of COMMUNIA on this agenda item (Agenda Item 6):

Much of the content that broadcasters transmit plays an essential informational, cultural and educational role in our society. Radio and television programs and archives are fundamental to have access to knowledge and information. They are sources of scientific research and are also used as educational materials. We recall that radio and TV-based remote learning have re-emerged in the past years, in response to the pandemic.

Therefore it is essential that educators and researchers have broad and immediate access to broadcast content.

Although the scope of the draft treaty has been reduced, the need for robust limitations and exceptions remains, when legal protection of broadcasters is shaped in the form of exclusive rights.

The problem is that the draft text only says that countries “may” extend the same exceptions that exist for copyright, but, obviously, countries can choose not to do this.

This is more restrictive than the Berne Convention, which has mandatory exceptions for news of the day and quotations, and permissive exceptions for educational and other uses. This may lead to the surprising result that broadcasts are subjected to fewer exceptions than the underlying copyrighted works.

A treaty that creates an additional layer of rights needs to also mandate the corresponding exceptions. Otherwise it ignores the societal and cultural needs related with access and reuse of broadcasts, failing the society as a whole.

The post SCCR/42: COMMUNIA statement on the protection of broadcasting organizations appeared first on COMMUNIA Association.

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:

1. the prohibition on contractual overrides, which is mandatory for EU Member States and applies to those exceptions;
2. 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 
3. 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. 

The post How to Promote Research and Education at the Global Level? Takeaways from our Panel Discussion appeared first on COMMUNIA Association.

Join us on February 15th at 15:00 CET in an online panel discussion co-hosted by COMMUNIA, Wikimedia Deutschland, and the Right to Research in International Copyright Law project* to discuss this question.

The Directive on Copyright in the Digital Single Market greatly facilitates important activities, such as text and data mining or online teaching in cross-border settings. The value of these provisions is clearer than ever. During the Covid-19 pandemic, we have all witnessed a shift to the digital environment and it is clear that online learning and research are here to stay.

Unfortunately, these new limitations and exceptions to copyright only apply in Europe. The vast majority of educators and researchers in other parts of the world, particularly in the Global South, lack such provisions and, as a result, are not always able to undertake these activities. The current state of legal fragmentation also severely limits cross-border collaboration, demonstrating the need for a global solution. Important fora, including the UN World Intellectual Property Organization, have discussed many of these topics for over 15 years but so far have failed to deliver a solution.

We invite you to participate in this online event and follow the discussion of a distinguished panel of experts on whether and how the provisions of the EU Copyright Directive should serve as a model for multilateral instruments or trade agreements.

Panel:

• Marco Giorello (Head of the Copyright Unit at the European Commission, DG CNECT)
• Ruth L. Okediji (Jeremiah Smith. Jr. Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center)
• Erry Prasetyo (Intellectual Property and Trade Disputes Officer at the Ministry of Foreign Affairs of the Republic of Indonesia) 
• Catherine Stihler (Chief Executive Officer at Creative Commons) 
• Moderated by Teresa Nobre (Vice-President of COMMUNIA)

Please register here in advance. Registered participants will receive detailed information on how to join ahead of the event.

Update: Those who weren’t among the first 100 registrations will be able to follow the synced live stream on YouTube.

*The Project on the Right to Research in International Copyright is supported by Arcadia – a charitable fund by Lisbet Rausing and Peter Baldwin

The post Save the Date: The New EU Copyright Exceptions – A Model for the World? appeared first on COMMUNIA Association.

This is the second time the Committee meets since the beginning of the pandemic. In November last year, we urged the Committee to take appropriate action to respond to the massive disruption to education, research and other public interest activities caused by the COVID-19 pandemic. However, no Delegations put forward any proposal, and we left the SCCR disappointed at WIPO’s inaction in the face of this global crisis. 

Today, most Delegations expressed their agreement to a proposal to hold a number of regional consultations “to further develop the understanding of the situation of the cultural and educational and research institutions at the local level, especially in light of the impact of the Covid-19 pandemic on them”. Furthermore, a proposal by the Asia-Pacific Group, to hold an informational session at the next SCCR on the impact of COVID-19 on all the beneficiaries of the copyright system, was also well received.

Global South countries insisted, nevertheless, that the next steps for the agenda items on limitations and exceptions to copyright should not be limited to those consultations and information sessions. Many Delegations recalled the 2012 mandate to work towards “an appropriate international legal instrument”, and urged the Committee to set a work plan to fulfill the mandate.

The following is the statement made on behalf of COMMUNIA on the agenda item on limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 7):

During the peak of the pandemic, 90 percent of all countries worldwide offered online learning. Yet, many of these remote uses made by your educational communities, made by your family, your friends, are not protected by law. By the vast majority of laws.

The lack of fundamental exceptions to copyright that are fit for our current digital lives is a problem across the world. Yet many here claim this is a local issue, for each member state alone to solve.

When a meeting (such as this one) takes place and the participants, joining from all over the world, cite others in their statements, they trigger the application of multiple laws. When universities in your countries invite students located in other countries to online programmes, and the teachers show copyrighted images in their live streamed classes, they also trigger the application of multiple laws. Yet many here claim that there is no cross-border dimension to these issues, and each member state alone can solve them.

We honestly do not know how your country or any other country is supposed to solve these issues alone, when the works shown and shared in one country are seen and heard across multiple countries at the same time. 

So we urge you, work together to find a supranational solution to these pressing needs that affect education, research, and access to information.

As a first measure, we ask you to pass a resolution now to assert the flexibilities that exist in the Treaties to conduct public interest activities online. Further, we ask you to develop a work programme for the Limitations and Exceptions agenda item to fix this issue and protect fundamental uses across borders.

Finally, while we welcome the proposal for consultations and informational sessions, we ask that this time our constituencies are properly involved and represented.

The post SCCR/41: COMMUNIA Statement on Limitations and Exceptions appeared first on COMMUNIA Association.

We launched a new website, dedicated to reviewing the implementation of these policy recommendations. 10 years on, it is possible to see that half of our recommendations have been implemented – fully or partially -, and the other half remains unfulfilled. Most importantly, almost all of the recommendations are still relevant.

Where victory can be claimed: freeing digital reproductions of public domain works and giving access to orphan works

One of COMMUNIA’s main objectives since its foundation has been to promote and protect the digital public domain. Therefore, when the EU Parliament decided to follow our Recommendation #5 and proposed the introduction of a provision in the new Copyright Directive, preventing Member States from protecting non original reproductions of works of visual arts in the public domain with copyright or related rights, we were exhilarated. Article 14 not only reconfirms the principle that no one should be able to claim exclusive control over works that are in the public domain; it’s also the first EU piece of legislation to expressly refer to the concept of “public domain”.

Getting the “public domain” to enter the EU acquis lexicon was a major victory for user rights, but for sure more measures are needed to effectively protect the Public Domain. Our Recommendation #6, which called for sanctioning false or misleading attempts to misappropriate or claim exclusive rights over public domain material, has not been implemented and is more relevant than ever, particularly on online content sharing platforms. Here, a false ownership claim can easily lead to the false blocking of public domain material, as a result of the use of automated content recognition systems combined with the lack of public databases of ownership rights (that’s why the German legislator has recently adopted measures against this type of abuse, setting a new standard for the protection of the Public Domain).

Another victory coming out from the recent EU copyright reform relates to the creation of an efficient pan European system that grants users full access to orphan works (Recommendation #9). The first attempt of the EU legislator to address this issue, through the Orphan Works Directive, is widely considered a failure, since the Directive only works for a small number of cinematographic works. However, the provisions on the use of out of commerce works in the DSM Directive provide a comprehensive solution for the problem of orphan works (by definition orphan works are also out of commerce and so these provisions also apply to them) (cf. Articles 8-11).

Where major advances have been made: mandatory exceptions to copyright and open access to publicly funded resources

Recommendations #3, #9, #10, #12 all asked for the creation and harmonization of exceptions and limitations to copyright, and we have seen major advances on this topic in recent years. Cultural heritage institutions now benefit from a set of mandatory exceptions regarding uses of orphan works and of out-of-commerce works, and for preservation purposes. There is a new exception for the benefit of persons who are blind, visually impaired or otherwise print-disabled, and the Commission has recently concluded a consultation on the availability of works for persons with other disabilities, which might lead to further developments in this field. The fields of education and research were also considered in the recent EU copyright reform, with the approval of new exceptions for text and data mining, and for digital and cross-border teaching activities. New mandatory exceptions for quotation, criticism, review, caricature, parody or pastiche on certain online content-sharing platforms are also part of the Article 17 package. Finally, the CJEU has recently indicated that the exceptions and limitations of the Copyright Directive that are aimed to observe fundamental freedoms might be mandatory for Member States (cf. the judgments of 29 July 2019 Funke Medien, C-469/17, para. 58; Pelham, C-476/17, para. 60; and Spiegel Online, C‐516/17, para. 43), which means that there is a possibility of further harmonization of exceptions in the coming years through judicial development.

Certainly, more progress is needed in the area of exceptions and limitations, particularly after the massive shift of education, research and cultural activities to the online environment, following the pandemic closure of institutions. Not only do we need a higher level of harmonization among Member States, but also flexibility to adapt this legal framework to rapid societal and technological changes. Therefore, our recommendation #3 to harmonize exceptions and open up the exhaustive list of user prerogatives is still highly relevant.

In the past decade, we have also seen great advancements on the issue of open access to public funded resources. Recommendations #11, #12 and #13 asked for publicly funded digitized content, research output, educational resources and public sector information to be made publicly available free from restrictions. Over the past years the idea that publicly funded resources need to be available to the public has gained traction not only among policy makers but also within the vast majority of cultural heritage and research institutions. Initiatives from public research funders have led to the increasing adoption of open access policies within the academic research sector. In 2013 the scope of application of the PSI Directive was extended to libraries, museums and archives. Also, Member States are required to ensure that documents on which those institutions hold intellectual property rights shall be re-usable for commercial or non-commercial purposes  under the Open Data Directive. This means that this set of recommendations has been partially implemented; the principle that public money should result in public access has not, however, yet been universally accepted.

Where nothing has changed: terms of protection, registration, technical protection measures, and alternative reward systems 

The excessive length of copyright protection combined with an absence of formalities is highly detrimental to the accessibility of our shared knowledge and culture. Therefore, a decade ago, we recommended reducing the terms of copyright protection (Recommendation #1). Unfortunately the trends in the past decade have gone in the opposite direction. The proposed term extension for performers and sound recordings, which we had recommended not to be adopted (Recommendation #2), was approved by Directive 2011/77/EU. Furthermore, the rules for establishing the duration of the term of protection of individual works remain fragmented and highly complex, contrary to our Recommendation #4.

On the issue of formalities, while our Recommendation #8 to grant full copyright protection only to works that have been registered by their authors has not been implemented, it has become increasingly clear that, for the copyright system to continue to function, registration of works will become ever more important. Over the past year the EU legislator has been making a number of baby steps towards systems to reserve or claim rights. These have been mostly as a condition to expand exceptions and limitations further, with rightholders being given the right to opt out from certain permitted uses of their works if they express such intention by specific means: this is the case of some text and data mining activities, where rightholders have the right to prevent those activities provided that they expressly do so “in an appropriate manner” (cf. Article 4(4) of the DSM Directive), and it is also the case in the context of the use of out-of-commerce works by cultural heritage institutions (cf. Article 8(3) of the DSM Directive), where rightholders are allowed to opt-out through the EUIPO Out of Commerce Works Portal. Yet, the new Commission’s Intellectual Property Action Plan reveals the intention to look deeper into how “to promote the quality of copyright data and achieve a well-functioning “copyright infrastructure” (e.g. improve authoritative and updated information on right holders, terms and conditions and licensing opportunities)”.

Another area where there were barely any changes to the EU policy is the area of technological overrides of exceptions and limitations. The only improvement we have seen in the new Copyright Directive is that the beneficiaries of the new exceptions have the right to require the technical means necessary to use TPM-protected works even when the work was acquired under contract and made available across the internet (something that was not the case under the InfoSoc legislation). However, the vast majority of EU Member States do not have mechanisms in place to grant users access to TPM-protected works. This means that technical protection measures can still significantly inhibit the use of works under exceptions and limitations. In other words, it is about time for the EU lawmaker to recognize this problem and implement our Recommendation #7, allowing users to circumvent TPMs when exercising rights under exceptions or when using public domain works.

Finally, our last Recommendation (#14), advising lawmakers to switch the focus of their policies from extension of copyright protection and enforcement of rights to alternative rewards systems and cultural flat rate models has also not been implemented.  Since we have issued this recommendation we have seen massive changes in the way cultural expression and exchange are taking place online, with the emergence of subscription services for creative content and new creator cultures that rely on advertising driven platforms. Copyright plays an important role in these business models but any real solution to ensure a fairer distribution of the economic benefits of these models likely requires intervention way beyond copyright alone.

The post 10 years of COMMUNIA, a decade of copyright reform: how far did we get? appeared first on COMMUNIA Association.

Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič. 

What changes are introduced to the current copyright framework for education in Croatia?

The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”)  does not include an educational exception for digital uses.  It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public. 

The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).

The Croatian government opened public consultations on the First Draft bill, which also included a virtual public presentation of the Draft bill on 15 May 2020, and was eventually closed on 17 May 2020. While the report on comments of the First Draft bill was scheduled for the end of May, it was pushed forward due to the sheer volume of feedback received. On 7 October 2020, the Croatian State Intellectual Property Office finally published the Report on public consultation on the First Draft bill, including all 727 comments received by the interested stakeholders.

On 16 November 2020, a Second Draft bill was tabled in the parliamentary committee, and on 19 November 2020 it was accepted. The provisions regarding a new exception for the creation and sharing of teaching collections (see second draft Article 192), and a new exception for digital and cross-border teaching activities (see second draft Article 194) remained unchanged from the First Draft bill (Articles 188 and 190 of the First Draft bill). The Second Draft bill is in its first reading since 11 February 2021, and any amendments cannot be proposed until it is tabled for its second reading.

What is the scope of the proposed exception for digital and cross-border education?

Article 194 of the proposed version of ZAPSP regulates the free exception for digital use for educational purposes. It states that no approval from righstholders for such use of materials shall be necessary, as long as such use is of a non-commercial nature and as long as it takes place within the educational institution, in its premises or other facilities, or through a secure electronic environment. It clarifies that “illustration for teaching” includes digital uses of copyrighted works in parts or in excerpts, for the purpose of supporting, enriching or supplementing teaching and teaching activities. It requires that the uses allowed herein shall not replace the purchase of materials, primarily intended for educational markets. It also explicitly states that the exception can be relied upon in the lifelong educational activities carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

As to the rights covered, the exception follows the minimum standard imposed by the Directive and only applies to the rights of reproduction and communication to the public, including making available to the public.

With regards to the beneficiaries, the exception covers not only activities that take place under the responsibility of an educational institution, in its premises or other facilities, or through a secure electronic environment, as mandated by the Directive, but also – in the case of lifelong educational activities – those carried out by state institutions, public institutions and any other institutions authorised to provide such activities. 

Contrary to what is prescribed by the Directive, which covers uses to the extent required by the purpose to be achieved, the proposed Croatian exception limits the use to parts or excerpts of the materials. The proposed Article 194 ZAPSP further states that the uses allowed therein shall not replace the purchase of materials primarily intended for educational markets. This wording is inspired by recital 21 of the Directive, which states that “In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market.” 

Finally, the proposed article states that the educational exception cannot be overridden by contractual provisions, and includes a cross-border provision, according to which uses covered by the exception are deemed to take place in the Member State where the educational establishment is located.

What could be improved?

While the ZAPSP Draft bill represents a positive approach towards user rights protection and proposes the implementation of a broad copyright exception, there are some aspects on which it could be improved.

First of all, the exception should not prevent the use of works in their entirety. Although, as a rule, an educational exception only allows the use of parts of works, for certain materials (e.g. an image or a poem) the work must be used in its entirety for its meaning to be perceived. The Croatian legislator should follow the wording of the Directive, which states that the materials can be used to the extent necessary to the activities permitted under the exception.

Paragraph 1 of Article 190 ZAPSP Draft bill defines the secure electronic environment as one »which can be accessed only by pupils or students and teaching staff of that educational institution, provided that the source and name of the author or other right holder must be indicated, unless this proves impossible.«. The term »secure electronic environment« should be explicitly construed so as to include emails, messaging services, group chats or any other electronic communication networks and services used for teaching as well.

In addition, Paragraph 1 of Article 194 ZAPSP Draft bill relates to the acts of reproduction and communication to the public, including making available to the public, but it does not cover the act of distribution. While this is strictly consistent with the wording of Article 5 DSM Directive, national legislators have the option to go beyond what is expressly written in the DSM Directive. In this sense, the ZAPSP Draft bill could have included the distribution of physical copies of protected content as well, taking into account that analogue uses might be needed to complement digital uses or even make them possible and might be therefore crucial for fully achieving the purpose of the provision. It would also be important to extend the scope of the exception to a right that is not harmonized at the EU level, but that is essential in an education setting, which is the right to make translations and other adaptations of copyrighted materials.

The exception for digital learning activities in Article 194 ZAPSP Draft bill should also cover a broader spectrum of educational activities: joint educational activities provided by multiple education providers, as well as educational activities provided by informal education providers. The exception should also cover uses that take place on informal learning platforms, as there is no reason to differentiate these activities from formal ones.

Finally, the exception in Article 194 ZAPSP Draft bill should stipulate that it applies also to individuals that support or complement the teachers’ activities (e.g. social workers, professionals that provide special needs support, professionals that provide extracurricular activities and support, and parents). Inclusion of such individuals in educational processes is increasingly ubiquitous, which is why any legislation looking to provide useful and relevant copyright exceptions for education should include such situations as well.

Conclusion

The Croatian Draft bill and, specifically, its provision for the implementation of Article 5 of the DSM Directive into their legal framework, although it represents a step in the right direction, still has certain room for improvement and would benefit from clearer language in certain provisions and from broadening its scope. It is certainly commendable that its provisions provide for non-remunerated copyright exceptions for educational purposes, and as such could very well prove to be a reference point for other Central European countries which have not yet produced their own draft bills.

The post The Croatian proposal to implement the new education exception: it could be better appeared first on COMMUNIA Association.

This diverse group representing researchers, educators, students, information users, and the institutions that support them, urges all WTO Members to endorse the TRIPS waiver proposal presented by India and South Africa, including provisions that address “the copyright barriers to the prevention, containment and treatment of COVID-19”.

All over the world, educational institutions, research organizations and cultural heritage institutions have been forced into closure as a non-pharmaceutical measure to contain the COVID-19 pandemic. Yet, the majority of national copyright laws in all the continents have no elasticity to cover educational, research and public interest activities that need to take place remotely during the periods when the physical premises of those institutions are closed due to emergencies that fundamentally disrupt the normal organization of society, like the COVID-19 pandemic.

Furthermore, as pointed out in the statement, “(i)n too many countries, researchers lack the rights they need to use the most advanced research methodologies, such as text and data mining, to help find and develop treatments to COVID-19.”

The fact that copyright laws are not able to support these activities constitutes a barrier to an equitable response to COVID-19, and it shows that these laws cannot be deemed to have properly internalized the fundamental rights to freedom of information, freedom of science and education. 

Therefore, the signatories call for urgent action to clarify that all copyright and related rights treaties, including the copyright provisions of the TRIPS Agreement:

• Can and should be interpreted and implemented to respect the primacy of human rights obligations during the pandemic and other emergencies, including the rights to seek, receive and impart information, to education, and to freely participate in cultural life and share in scientific advancement and its benefits, while protecting the moral and material interests of authors;
• Permit governments to protect and promote vital public interests during a health or other emergency; 
• Permit governments to carry forward and appropriately extend into the digital environment limitations and exceptions that are appropriate in the digital network environment, particularly during a health or other emergency. 

You can read the full statement here. 

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