Similarly to what we did with the Dutch proposal, we will provide here an overview of the German proposal to implement locally the new exception. This is part of our effort to track how countries across Europe implement this mandatory exception to copyright for educational purposes.

What changes are introduced to the existing legal framework in Germany?

Germany proposes to implement the new educational exception through an amendment to the existing education exception in Section 60a of the Act on Copyright and Related Rights (see English version here). 

The current exception covers all relevant, digital and non-digital, educational activities undertaken by educational establishments for non-commercial purposes. The exception is technologically neutral and allows the educational establishment’s teachers and students to hold activities in any venues. However, it sets quantity limitations (save for illustrations, isolated articles from the same professional or scientific journal, small-scale works or out-of-commerce works, which can be used in their entirety, the exception only allows the use of up to 15% of a work) and it excludes specific uses of certain types of materials from the scope of the exception, most notably materials exclusively intended for teaching in schools and sheet music. Furthermore, most uses are subject to the payment of compensation to the rightholders.

Under the new proposal, the scope of the education exception would be practically the same. The main difference is that the exclusion of specific uses of certain types of materials would be conditioned to the existence of licenses (easily available in the market and covering the needs and specificities of educational establishments) authorizing those uses. In other words, if such licenses do not exist, then those uses can be made under the exception. 

What is the main flaw of Germany’s proposal?

The main flaw of the proposed education exception is to give preference to licensing offers over the educational exception, with respect to specific uses of certain types of materials, taking away the educators and the learners right to make those uses under the exception as soon as copyright owners start selling licences for said uses.

One can argue that the proposed exception shows a clear improvement as compared to the existing exception: where, before, the formal educational community in Germany could not make certain uses of certain materials under the education exception, now they are only prevented from doing so if they are able to easily find in the market licenses for those uses, and provided that those licenses meet the needs and specificities of the educational establishments.

However, that is not the right way of looking at it, because the new Directive does not allow Member States to exclude specific uses from the scope of their educational exception unless – and to the extent that – there are licenses available in the market covering those uses. In other words, Germany did not have the option to simply keep the existing framework. It was always required to bring those previously excluded uses under the scope of the new exception. And it could have done so without making the educational exception partially dependent on the availability of licenses.

Education exceptions should not be partially subject to license availability

We have long been arguing that a teacher’s or student’s ability to benefit from the exception should not be taken away by copyright owners. Otherwise, the law ends up negating the effectiveness of the exception. Indeed, the beneficiaries will be denied the right to make certain uses under the exception, and will be forced to buy licenses for those uses. As we saw in our short analysis of educational licensing agreements, those licenses might not be subject to negotiation, might be disadvantageous for educational institutions in terms of added costs, added bureaucracy, surveillance or uncertainty about the conditions attached to licenses. 

In addition, the replacement of the exception with licensing offers might go against fundamental rights. In the CJEU judgment dated as of 11 September 2014, Technische Universität Darmstadt v Eugen Ulmer KG (“TU Darmstadt”), the court stated that, when a copyright owner offers an institution to buy a license from them, such one-sided licensing proposal is not sufficient to say that the exception is no longer applicable. According to the court, only if the two parties have agreed on a license, can the exception be set aside. Otherwise, one would be denying the establishment concerned “the right to benefit from that limitation and thereby prevent it from realising its core mission and promoting the public interest”.

In sum, the German proposal sets a bad example and a dangerous precedent for users rights and should, therefore, be amended. Schools and their teachers and students should not be forced to stop relying on the exception for specific uses of certain types of materials when copyright owners start marketing licenses covering those uses. Copyright owners should not be able to switch off the education exception for those uses. Otherwise, over the coming years educators and learners in Germany could benefit from an education exception with an enlarged scope of protection only to see it be narrowed down again and replaced by licensing schemes.

More room for improvement

There are two other issues that have been part of our concerns during the legislative debate of the new EU mandatory educational exception that could have been considered in the German proposal. One regarding the scope of the exception (in terms of beneficiaries and the extent to which a work can be used) and the other regarding compensation rules for educational uses.

Beneficiaries

Although the German exception allows uses to take place outside the premises of educational establishments, e.g. in a museum, library or another cultural heritage institution, it does not cover the activities run by those institutions themselves. Considering that every year 24 million adults take part in non-formal training activities in libraries across the EU, it would be sensible to at least include them in the scope of the new provision.

Quantity Limitations

The German exception pre-dictates the maximum extent to which a piece of content can be used in Germany, thus concurring to the fragmentation of the copyright framework for educational activities across the EU. Indeed, if each Member State decides to make use of this option, and each defines different ceilings, we will end up with the same fragmented landscape that currently prevents online and cross-border education in the EU.

We know that, as a rule, an educational exception only allows the uses of parts of works, but for certain materials (e.g. a photograph) work must be used in its entirety, and for other materials, depending on the circumstances, it would be reasonable to use e.g. 20% instead of 15% of a work, as foreseen in the German exception. 

Article 5 of the Directive does not define the maximum extent to which the protected content can be used under the exception: it states that the materials can be used to the extent necessary to the activities permitted under the exception. This allows practice and court decisions to define what is right. The 3-step test gives the flexibility users need in any given situation, while protecting the interests of copyright owners. Defining a floor in the law, in terms of the amount of content that can be used under the exception, helps providing legal certainty to teachers and students, and should therefore be supported. However, defining ceilings in the law, beforehand, can only lead to unfair situations, and should therefore be rejected. For these reasons, the German education exception should be amended to clarify that one can use at least (and not up to) 15% of a work or other subject matter.

Compensation

Finally, Germany decided to keep most educational uses subject to the payment of compensation to rightholders. The only exception to this rule is with regards to communications to the public (excluding making available to the public) for the benefit of members of educational establishments and their families, which are free. 

We believe that, even for countries that have a tradition of compensated exceptions, like Germany, an assessment should be made as to the potential harm caused to copyright owners by minimal usage of protected content in an educational context. If the harm is reduced or non-existent for uses below a certain percentage of protected content, it is only sensible for such uses to be exempted from the payment of compensation. The government could attempt to define a reasonable threshold that takes into account the amount of protected content used in the educational activity and eliminates the payment of fair compensation if the threshold is not reached. What is reasonable should be assessed quantitatively but also qualitatively, and the local educational community should be consulted and have a saying in the definition of this limit.

The post Germany sets bad example with the proposed implementation of the new education exception appeared first on COMMUNIA Association.

For a detailed analysis, please read Europeana and Communia’s guide on Articles 8-11, authored by Ariadna Matas and Paul Keller.

What is at issue in Articles 8-11?

Articles 8-11 intend to allow cultural heritage institutions (CHIs) to digitise and make out of commerce works (OOCW) in their collections available online. 

Breaking down Articles 8-11

What is an OOCW? Work or other subject matter that has never been in commerce or that is no longer available, as a whole, through “customary channels of commerce”. 

How does a work qualify as OOC? CHIs have to make a reasonable effort to determine whether a work is in commerce, with no mandatory search. Member States can provide specific requirements, e.g. cut-off date.

What solutions are made available to use OOCW? Two legal solutions: an extended collective license or, as a fallback mechanism, an exception to copyright.

Who can benefit from these legal solutions? CHIs

When does the license apply? When a sufficiently representative collective management organisation (CMO) exists for the specific type of work and right.

What is a sufficiently representative CMO? Member States have flexibility to determine the threshold that will make a CMO representative or not. This needs to be based on the number of rights holders represented for the rights covered. 

When does the exception apply? It applies to types of works and uses for which no sufficiently representative CMO exists.

Can authors opt out from the licenses and the exception? Yes, they have the right to exclude their works from the uses being made under the license or the exception.

Can the CHI use any OOCW under the license or the exception? CHI can only use OOCW that are owned or permanently held by them, excluding sets of OOCW that predominantly consist of works by non-EU nationals.

How to deal with Articles 8-11?

• Argue for the establishment of strict criteria on how to consider that a CMO is sufficiently representative.
• Get a workable and broad definition of what is considered an OOCW.
• Push for no definition at all or a very flexible one of what is considered a “reasonable effort” to determine whether a work is OOC.
• Insist that CMOs that are enabled to issue ECLs for the use of OOCWs need to meet the transparency and governance requirements of Directive 2014/26/EU.
• Make sure that there is broad representation from all types of CHIs in the stakeholder dialogues.

The post Implementing the new EU provisions that allow the use of out-of-commerce works appeared first on COMMUNIA Association.

Let’s recall the improvements introduced by the Parliament: (i) on the issue of licensing, where the EC proposed to allow the exception to be switched off if unilateral licensing offers were made available to schools, the EP suggested to give priority only to bilateral licensing agreements that the schools had agreed on; (ii) on the issue of beneficiaries, where the EC proposed to cover only the activities run by formal educational establishments, the EP suggested to include museums and other cultural heritage institutions as beneficiaries of the exception; (iii) on the issue of contractual overrides, where the EC had done nothing to protect the exception against contracts, the EP proposed to prevent contractual overrides of the education exception, and (iv) on the issue of technologies, where the EC proposed to make the exception function only on the school’s closed networks, the EP attempted to cover more means of communication by replacing the word “networks” with “environments”.

Unfortunately, the European Council did not engage in the same type of public discussions with regard to new European law proposals and, maybe because of that, it’s version of Article 4 did not include similar improvements. What is worse: it made the prospects of having an improved and harmonized landscape for educational activities in Europe even less likely.

For several months, the Commission, the Council and the Parliament discussed, behind closed doors, the fate of the new Directive, and as far as we are aware there was little interest in discussing the education exception because there were other pressing issues that required their attention. As a result, the positive amendments contained in the Parliament version were not retained in the Trilogues.

Below, we explain three negative changes made to the text of the educational exception in this final phase of the legislative process. Changes made without public consultation, transparency or due review of evidence. These include denying teachers the right to benefit from the exception when there are licenses available in the market for them to buy; excluding the educational programs run by museums and libraries from the scope of the exception; and allowing Member States to fragment the exception, by defining different proportions to which a work can be used.

Teachers can benefit from the exception, but only if publishers let them

Over the coming years, educators and learners could benefit from a new education exception, but might only see it disappear and be replaced by licensing schemes. The compromise position approved during the Trilogues allow Member States to switch off the exception provided that licenses are “easily available in the market”. This means that no contractual relationship is needed to rule out the application of the exception; a mere license offer, a license that is “easily available in the market”, is enough to deny schools the right to benefit from the exception, even if they do not agree to the terms and conditions of said license.

By rejecting the Parliament’s version of Art. 4(2), which would  give priority only to “license agreements” that both parties (the schools and the rightsholders) had agreed to, the EU institutions clearly intended to go against the Court of Justice of the European Union, which had previously ruled out the possibility of denying the right to benefit from a copyright exception when licenses were available to the beneficiaries of said exceptions.

Educational activities run by museums and libraries are no longer covered by the exception

Education is understood today as a process that is conducted by a multitude of institutions, and even learners themselves. The EC failed to embrace this reality by limiting the potential beneficiaries of the proposed exception to formal educational establishments. The Parliament, realizing the importance of cultural heritage institutions in the provision of education, sought to broaden the type of institutions that could benefit from the new educational exception to include those.

Dozens of Members of the Parliament proposed amendments to include the educational programs run by museums and libraries within the scope of the exception. It was, thus, without surprise that the version of the Directive approved by the Parliament contained the following amendment (recital 15):

Where cultural heritage institutions pursue an educational objective and are involved in teaching activities, it should be possible for Member States to consider those institutions as an educational establishment under this exception in so far as their teaching activities are concerned.

The Council did not include a similar amendment, but considering that the majority of the Parliament had embraced this cause, we were expecting it to withstand during the Trilogues. However, that excerpt of Recital 15 was quietly removed. This means that, if the Directive passes without this language, museums and libraries can no longer rely on this copyright exception when providing educational activities.

So long harmonization: each country may define a priori the extent to which a work can be used, leading to different limitations across the EU

A little reminder: educators and learners across the EU struggle everyday when dealing with copyright both in their countries (because some EU countries do not have proper copyright exceptions in place for educational purposes) and across borders (because the educational exceptions do not work the same way in every EU country, making it impossible to engage in cross-border educational activities).

The whole point of the new educational exception was to harmonize a legal landscape that is currently so fragmented that it creates legal uncertainty for teachers, promotes inequality among students and severely limits cross-border collaboration.

In order to offer certainty for the educational community in a way that results in removing the current obstacles to cross-border education, the minimum rules need to be the same in every country. In other words, there needs to be a minimum agreement with regard to whom can use copyrighted materials under the exception, which uses are possible, what types of copyrighted materials can be used and to which extent, and what other conditions are in place.

Both the Commission’s proposal and the Parliament’s version covered all the types of copyrighted works and other subject matter “to the extent justified by the non-commercial purpose to be achieved”. The version of Article 4 resulting from the Trilogues continues to say the same thing. However, the Council managed to convince the other two EU institutions to include in Recital 16 the following language:

Member States should remain free to specify, for the different categories of works or other subject-matter and in a balanced manner, the proportion of a work or other subject-matter that may be used for the sole purpose of illustration for teaching.

There seems to be an aversion of EU Member States to let practice and court decisions define what is balanced, and what is fair. Sure enough, as a rule, an educational exception only allows the uses of parts works. But if the work is an image or a short poem, then it is only reasonable to permit the use of the work in its entirety.

The three-step test gives the flexibility the users need in every given situation, while protecting the interests of rightsholders. Defining percentages beforehand can only lead to unfair situations, and giving Member States the option to define different percentages can only perpetuate the current fragmented landscape that prevents cross-border exchange of materials during the course of educational programs.

The post The education exception was gutted during the Trilogues appeared first on COMMUNIA Association.

While the small number of agreements analyzed in the study does not allow us to make any safe conclusions with respect to the different licensing schemes, we could not avoid noticing that (some of) the most unfair terms identified in this study are contained in the British licences. And that is interesting to highlight because licences prevail over the teaching exception only in two EU countries: United Kingdom and Ireland (source: IA on the modernization of copyright rules). 

One possible explanation for this apparent correlation is that the UK legal framework prevents licensees from refusing licences that contain terms and conditions that will act against their best interests. Educational establishments, or governmental institutions acting on their behalf, are “forced” to accept any licence that is easily available in the market, if they want to continue making the uses that were protected by such exceptions, and that become suddenly covered by the licences. In this context, right holders are “free” to almost unilaterally reshape the terms and conditions of educational uses made under their licences.

If this is not enough to cause concern among lawmakers, here are the 5 most questionable terms and conditions identified in the agreements analyzed in our study:

1. Licensor can inspect materials, secured networks and storage platforms used by schools, without being required to keep the information obtained confidential

Does not prevent licensors from disclosing and making commercial uses of sensitive information, such as data related with the performance of students

2. Licensor can enter a school’s premises at any time, provided it gives reasonable notice, to ensure compliance with the licence and inspect procedures

It can disrupt the normal operation of schools

3. Schools have to take reasonable steps to ensure that licences are not infringed by teachers, students and third parties

It creates an excessive burden on schools that have to start policing teachers, students, parents and third parties

4. School must own, or subscribe to, a copy of the materials it copies, scans or uses under the licences

Does not allow uses of materials owned by teachers and students or borrowed from a library or legally obtained

5. Digital copies may not contain hypertext links (or the like) to any external or third-party website

It prevents teachers and students from comparing, verifying and updating information and knowledge

Solutions

To avoid spreading these licensing conditions across Europe, lawmakers should consider adopting the following measures:

1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are mutually agreed by the parties.
2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation unenforceable.
3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable.
4. Assess the need to submit educational licences to public regulation.

• Download the full report Educational Licences in Europe, by Teresa Nobre
• Download the Handout Educational Licences in Europe
• Download the Handout The 5 Most Unfair Licence Conditions

The post Education: the 5 Most Unfair Licence Conditions appeared first on COMMUNIA Association.

Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:

Licences restrict the scope of protection of the educational exceptions

The agreements foresee various types of conditions to the permitted uses (e.g. technological limitations), which are not imposed by the educational exceptions. Some of the restrictions are introduced by contractual definitions of certain concepts of the law, such as what the terms “commercial” and “illustration for teaching” purposes mean.

Licences grant questionable rights to right holders

All of the agreements grant the right to check compliance with the licence to right holders. They may inspect materials, secured networks and storage platforms, and even enter the schools’ premises at any time, provided they give reasonable notice to schools. Only one agreement prevents right holders from disclosing sensitive information obtained in those inspections, such as data related with the performance of students. None of these agreements prohibits commercial uses of such data.

Licences impose burdensome obligations on schools

The British licences force schools to police teachers, students, and in some cases even third parties, on behalf of right holders, to ensure that an act of infringement ceases, and to prevent any recurrence thereof.

Solutions

The current proposal gives right holders the unilateral power to reshape the terms and conditions of educational uses. Our research shows that this will result in agreements that will act to the detriment of educational institutions. To avoid spreading these disadvantages across Europe, lawmakers should consider adopting the following measures:

1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are already in place.  A legal framework that protects a minimum set of educational uses will stimulate contractual innovation, and eventually lead to licensing offers that are attractive to schools because they cover uses not allowed by law (e.g. uses on the open internet).
2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation  unenforceable. A school will only be free to refuse a licence containing terms and conditions that are narrower or more restrictive than those offered by the law, if the educational exception is protected from contractual restrictions.
3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable. Lawmakers should put mechanisms in place to ensure that schools can force right holders to eliminate or replace unfair or unreasonable terms contained in the educational licences.
4. Assess the need to submit educational licences to public regulation. If the agreements are constantly challenged or if they invariably contain terms and conditions that are unreasonable or unfair, lawmakers may need to intervene.

• Download the full report Educational Licences in Europe, by Teresa Nobre
• Download the Handout Educational Licences in Europe

The post Our study “Educational Licences in Europe” is out now appeared first on COMMUNIA Association.

Unfortunately, this message has not come through to all, or not everyone understands what we are saying, or worse right holders have done a nice job in convincing lawmakers that’s the right way to go.

Allowing licenses to override exceptions is the only treat that publishers want

The current copyright reform carried the promise of being a landmark in the history of the EU copyright law. Lawmakers would finally show they understand that copyright is not superior to any of the other fundamental rights that every constitutional law across Europe grants to their citizens, and would make things right. Sadly, however, the prospects of that being the case for education are now very low.

MEPs passed the last year negotiating the scope of the educational exception. On the one hand, those who side with schools, teachers and students, proposed amendments to eliminate some of the constraints that the educational exception contains. On the other hand, those who side with publishers have been pushing for more restrictions, in order to narrow down the scope of the proposed exception even further.

Not enough MEPs understood that the most problematic aspect of art. 4 is not the scope of the mandatory exception (n.º 1) but the fact that Member States may choose not to apply such mandatory exception if licenses covering those uses are easily available in the market (n.º 2).

It is our understanding that publishers could not care less about the scope of the educational exception, provided that they can rule out the application of said exception with their own license agreements. This is copyright “taking the back seat”, as Professor Niva Elkin-Koren would put it.

License terms are not user friendly

It’s disappointing to see MEPs failing to acknowledge that providing this much power to publishers and other right holders will perpetuate the unbalanced power structure of the modern copyright systems. If right holders do not need to negotiate with users the exercise of their rights over their works (which is defensible from an economic point of view), is it fair to ask users to negotiate with right holders the exercise of their rights to access and use such works for educational purposes?

Subjecting educational uses to negotiation is problematic not only because it’s unfair and it fragments the legal frameworks for educational uses of protected works, but because the majority of educational institutions in the EU will be ill-placed to negotiate license terms or will be forced to accept the terms dictated by the licensor.

Even in countries where Ministries of Education will chose to negotiate and buy licenses on behalf of the education institutions under their control, things will not be easier. Accepting to give precedence to licenses over exceptions will open the door to strong lobbying of national governments by publishers, resulting in high transaction costs and naturally increasing the costs of education, at least in those 17 Member States where educational exceptions are now completely or largely unremunerated.

One should not forget that, according to a study commissioned by the EC in 2016, 31,3% of educators pointed out that “I or my school could not afford the price of the license”, when discussing copyright-related restrictions experienced by them that have an impact on their daily activities.

In addition to licensing prices, users will be faced with licensing offers under terms and conditions that are questionable, to say the least. We have been analysing collective licensing agreements in Finland, France and the United Kingdom, and we are shocked to see that licenses that have been negotiated by the governmental authorities contain the following:

• Terms that are contrary to the law (e.g. time or quantity limits that are not foreseen in the law) or abusive (e.g. the obligation on schools to ensure that they have other licences in place before undertaking activities that are covered by copyright exceptions),
• Terms that impose burdensome obligations on schools (e.g. schools have to ensure that teachers and students comply with the terms of the license and/or take steps to ensure that any breaching activity ceases), and
• Terms that grant right holders rights not foreseen in the law (e.g. right to enter the schools’ premises to review the implementation of the licenses or the right to require schools to participate in data collection exercises).

IMCO amendment to art. 4(2) is a nice effort, but not enough

Under the Commission’s proposal, any licensing offer can rule out the application of the education exception, thus negating much of the substance and effectiveness of the exception.

The IMCO committee proposed amendment to article 4(2) intended to give precedence only to extended collective licensing (ECL) schemes. As we said back then this represented a progress in relation to the Commission’s proposal, since it reduces the number of agreements “easily available in the market”, avoiding a situation where schools would be subject to an infinite number of individual licensing offers, with different terms and conditions. However, it does not prevent schools from being forced to accept terms and conditions imposed by collective societies under an ECL scheme.

ECL schemes are something alien to most of the Europeans, because so far they have only been implemented in the Scandinavian countries, but everyone should know that, when a collective management organization is approved by a governmental authority to grant licenses for the use of copyrighted works, including for the use of works whose right holders are not represented by such collecting society, there’s an approval decision that functions as a framework for the issuing of individual licenses to users. The terms and conditions of such individual licenses are then drafted by collecting societies, and they are not a mere reproduction of the terms of the approval decision. This means that would-be licensees may or may not have enough bargaining power to change such terms and conditions.

Therefore, if article 4(2) is to be maintained, a much better approach is the one proposed by Ms. Comodini, which gives precedence over the exception only to existing contractual relations.

MEP Comodini draft amendment to art. 4(2) is the wisest proposal on the table

Before leaving the European Parliament, Ms. Comodini proposed an amendment to art. 4(2) (“to the extent that adequate license agreements exist”) under which the unilateral and discretionary offer of the right holder to conclude a licensing agreement (“licenses that are easily available in the market”) would not be sufficient to deny the educational establishment concerned the right to benefit from the educational exception. An existing contractual relation would be needed to override the exception.

Basically, Ms. Comodini followed here the Court of Justice ruling in TU Darmstadt, where the court considered that only in cases where license arrangements already exist can they take priority over the statutory law, and a mere license proposal doesn’t qualify as such.

Certainly, if schools and governments are not obliged to accept any license offer, in order to keep using the protected works under the educational exception, they will have more bargaining power to negotiate an agreement that is not abusive and onerous to them. And they would still have an incentive to buy such licenses, as such agreements normally tend to offer something more than what is covered under the exception. We believe it would be a win-win situation, and we can only hope now that all MEPs can see the fairness and value of it.

The post Licenses: we are past copyright appeared first on COMMUNIA Association.

It is worth noting that the issue of exceptions (in particular for education) has not received as much attention as the link tax (art 11) or the content filter (art 13) in the whole debate on the proposed directive. Yet it is crucial from the viewpoint of a Committee that deals with education, and Joulaud rightly sees it as one of four key issues.

Joulaud, in the justification to the opinion, and in an opinion piece published by the Parliament Magazine, declares support for a balanced approach:

If the protection of intellectual property is a fundamental right, it should not be a disproportionate obstacle to the use of works for public interest.

He adds:

[…] for instance by threatening existing and perfectly viable ecosystems, like commercial licenses for data mining or educational licensing schemes.

This is reasonable as a general statement, but we’ll see that it leads Joulaud to propose amendments that are hardly balanced.

Joulaud states openly: “The Rapporteur supports the new mandatory exceptions and limitations provided in this Directive”. But is that really the case? The proposal for the Copyright Directive on one hand proposes a new mandatory educational exception for digital uses. On the other hand, the proposal adds to it an override mechanism that is triggered by the availability of licensing options. We knew from the start that a mandatory exception will be next to impossible, as Nordic Member States have historically relied on extended rights licensing solutions, which they do not want to give up. But the question remains: do other Member States need to jump onto the licensing bandwagon?

The original proposal creates a mechanism in which this question would no longer depend on the results of a public debate between stakeholders. All that would be needed to “switch off” the exception is for a member state to be convinced by a publisher that promote licenses as the solution for everything, and the Member States implement this mechanism.

Yet Joulaud goes even further and requires Member States to

actively assist in ensuring the availability of the licences authorising at least the acts described in paragraph 1, for example by acquiring collective licences on behalf of the educational establishments established on its territory or by facilitating dialogue between rightholders and educational establishments with a view to establishing specific licences.

It is hard to see how this is an expression of support for (mandatory) exceptions. With active assistance of Member States, rightholders will establish licensing options, that according to Article 4 of the proposal will immediately trump educational exceptions. Joulaud describes this as “providing legal clarity for educational establishments”.

Remuneration is not traditionally provided

Furthermore, Joulaud proposes to make remuneration obligatory, arguing that this is “traditionally provided for under the existing copyright rules”. We would like to remind that today the issue of remuneration is left for Member States to decide, and according to the EC study from 2016 called Assessment of the impact of the European copyright framework on digitally supported education and training practices:

Almost half of the countries analysed have no compensation mechanisms foreseen for teaching uses at all. (pg. 93).

If we add up those Member States that have no compensation scheme in place for all teaching uses and those that do not offer any compensation for a significant part of teaching uses, the number raises to 17 member states. (see Table 15: Compensation mechanisms for use of copyrighted works under exceptions and limitations, pg. 94 of the aforementioned EC study). It is therefore far from reality to say that remuneration is ‘traditionally provided”. Joulaud appears to be generally in favour of remunerated exceptions, as he proposes a similar rule for the new Text and Data Mining exception.

There’s one thing to be liked in the proposal: a new paragraph on the unenforceability of contractual provisions contrary to the exception. Yet, in the ecosystem envisioned by Joulaud, in practice there will not be any exceptions to defend, if the publishers do their job and Member States implement the licensing mechanism.

We are very much disappointed that this unbalanced opinion is presented in the Committee that is best suited to understand both the needs of educators and rightsholders. The strengthening of the licensing solution (despite declarations of a balanced position) brings us back to the failed “Licenses for Europe” model, and away from the goals set by the Commission in its Communication on Modern Copyright.

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Creative Commons—which is a founding member of COMMUNIA— reported a major milestone this year: over 1.1 billion CC licensed photos, videos, audio tracks, educational materials, research articles, 3D models and more have now been contributed to the shared global commons. More people and institutions than ever before make use of CC’s tools to free up rights-protected content for everybody to re-use.

In addition, CC noted a huge increase in the number of works shared in the public domain using the CC0 Public Domain Dedication and out-of-copyright works marked with the Public Domain Mark. According to the data, the total number of public domain works using these tools in 2014 was about 17.5 million. That number jumped to nearly 35 million in 2015. This means that the size of the CC-marked public domain nearly doubled over the last year. This is in part due to the tools being more widely and adopted by platforms like Europeana and Flickr. Providing clear information about the public domain status of works is crucial so that subsequent creators know they can use those works without any restriction.

You can read the full report, check out the data behind the numbers, and even make a donation to Creative Commons to continue this important work.

The post Doubling the size of the useable public domain appeared first on COMMUNIA Association.

On the other hand, the European People’s Party (EPP Group), the largest party in the European Parliament, issued a rather uninspiring position paper on copyright. Many wondered whether the document would present a more progressive stance on copyright reform than what we’ve seen so far from the Commission. And the answer is simply: No.

On an ideological level, the document starts with a really promising message and tone. The EPP Group claims that the most important issue is “a balanced approach on copyright” to accommodate needs of creators and consumers alike. We cannot agree more. But after stating this introduction, the EPP focuses only on creators’ rights, and presents their ultimate goal as ensuring the growth of the creative sector, leaving the issue of public domain out. It’s even more alarming that according to the EPP the only way to preserve cultural diversity in Europe is “ensuring a high level of copyright protection”.

In one sentence,  the EPP Group advocates for “a copyright system that promotes investments, the efficient functioning of value chains between authors, creators, performers, producers, publishers, journalists, intermediaries, service providers, consumers and users”. Apart from the obvious fact that culture cannot be reduced to value chains (or value trees for that matter), it is impossible to understand what they mean when they mention the needs of consumers and users, since these stakeholders have not been well represented in considering a balanced copyright reform.

We read that “the objective should be to put in place innovative, flexible, simplified and consumer-friendly licensing schemes for copyrighted works which should be guided by the principles of contractual freedom and fair remuneration for right holders”. This objective seems to revert to the tired idea that licensing can solve all of copyright’s problems.

Reforming the system by preserving the status quo?

The EPP group seems to be in favor of preserving the status quo and does not even attempt to work toward a Digital Single Market. Instead, they accept the current reality of 28 digital markets with different systems of private copy levies and copyright exceptions and limitations (education and research are the only areas where EPP can consider full harmonisation, but only under very strict conditions).

From the EPP paper we learn that such an anti-harmonisation approach is an answer to “expectations and specific situations emerging from domestic markets”. Clearly the issue of addressing the needs  of a more integrated EU market—where  cross-border Internet transactions are a reality for increasing numbers of citizens—was not perceived to be important enough to warrant any intervention. It seems that the EPP’s ideas for reforming the copyright system boils down to preserving the status quo.

A good example of the EPP’s feeble approach to copyright reform is the provision on ‘Unjustified geoblocking’. While it is recognized as an important issue to address, the report then goes on to say that it shouldn’t be addressed because “abolishing the territorial principle […]would harm European cultural diversity”. For anyone expecting copyright reform to really focus on the challenges of the digital environment—including adopting expanded and harmonised exceptions and limitations—the EPP position paper is a big disappointment. Instead, they simply rely on licensing as the answer for all copyright’s ills.

Let’s also take a look at how the paper discusses the issue of text and data mining. For the EPP, the only solution is to allow “text and data mining of lawfully-acquired content under market-established licensing terms”. Up until now everyone following the copyright reform debate was pretty sure that the conversation would be about how to expand the rules to provide an exception for text and data mining. Most stakeholders seem convinced that the demand from scientists to engage in text and data mining research is really high. But the EPP’s paper says the opposite, claiming that “the demand doesn’t currently justify an exception (for TDM)”.

The service provider’s liability—which is also a hot topic in the EU with the ongoing public consultation—the EPP “is in favor of a reassessment of the liability of service providers with regards to copyright infringements and the exercise of due diligence and duty of care throughout the creative process”. In other words, the EPP wants to make it more difficult for platform providers to host content from users, a move which has the potential to limit the way users can express themselves online. Unfortunately the EPP paper does not refer to any concerns related to notice and takedown procedures, or the possibility of strict liability regulation resulting in censorship of online content by providers who fear this type of liability.

Of course there are some positive provisions in the EPP’s, but these aren’t as progressive as what we’ve seen in Reda’s report, and even the Commission’s approach. The EPP declarations are also blurry, as one “call[s] for establishing more legal certainty in the framework of copyright for libraries and e-books”. Asking stakeholders and member states to create more legal certainty is a pretty comfortable (and not very helpful) approach. It allows the EPP not to take any stand on the issue on the European level, while still saying there is a vague problem to solved. The same applies to the portability of content and interoperability of formats: while recognizing need for changes, their position paper does not provide any specific solutions.

If the ideas of the EPP group are to be implemented, Europe will be left with an even more strict and overregulated copyright legal framework than it has right now. It is interesting that the position paper, which is aimed at shaping copyright reform, does not mention the issue of public domain even once. It also never brings up the discussion about shorter terms of copyright protection. We’re all still left wondering how anyone can claim that copyright is about balance?  

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Alek Tarkowski, speaking on behalf of Communia, talked about the importance of exceptions and limitations as one of the building blocks of the Public Domain. As such, they are fundamental for creating breathing spaces within the copyright system, in which public interest goals can be achieved without copyright-related limitations.

The insufficiency of licensing-based solutions was a clear outcome of the “Licenses for Europe” structured debate in 2013. Yet in recent weeks licensing-based solutions have started to resurface in the public debate on copyright. The European Publishers Council pushes for self-regulatory solutions (that is licenses) in its submission to the Digital Single Market consultation. CISAC, in its letter to MEP Reda, goes even further and describes exceptions and limitations as damaging to artists and their families.

It is in this context that we are asking for the European legislator to review the scope of the exceptions and limitations that are currently in force – and which were defined in the InfoSoc Directive almost 15 years ago. We need strong, harmonised, re-imagined exceptions and limitations as a fundamental building block of a copyright system fit for the digital age.

While not the focus of our position paper, free licensing is sometimes seen as a specific case of self-regulation. The success of Creative Commons licensing has been raised in the past as an argument in favor of a focus on licensing-based solutions. We are against such arguments and see free licensing as another founding element of the Public Domain. It is worth reminding in this context the Creative Commons statement in support of copyright reform.

Our position is fully described in our new position paper, “The importance of exceptions and limitations for a balanced copyright policy. ​Licensing alone will not secure user rights”. You can find it, alongside previous statements, in our “Policy Papers” section.

UPDATE: IFLA and Copyright for Creativity have also published posts about the meeting.

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