What is important, the copyright exceptions do not break creative markets and don’t put creators out of business. On the contrary – which poet wouldn’t want her poems to be translated in class? Which architect wouldn’t want his building to become a landmark everybody recognizes? Such a massive spread of cultural tropes is possible through the exceptions we have presented: freedom of panorama in Portugal, parody in France, education in Estonia and quotation in Finland.

Download the Best Case Scenarios #fixcopyright poster

So what are the mechanisms and tricks that make exceptions great? Any copyright exception needs to balance legitimate interests of both the users and the rights holders. When that balance is achieved we can have more than 4 best case scenarios for copyright.

We have identified 6 magic ingredients that make copyright exceptions and limitations great. Here is how to mix them to #fixcopyright:

1. Balance copyright with the public interest

All copyright exceptions we featured have one crucial thing in common – they always negotiate the exclusive rights against an important public interest. Literally each use can strike that balance differently and no regulation can envision all life situations.

Freedom of expression includes quoting, documenting or criticizing somebody else’s work. Securing access to modern education is so important for societies that it is fundamental to use all sorts of copyrighted materials in class instruction, lectures, tests, research, etc. Public interest justifies the limitation of rights holders’ prerogatives. A good exception is grounded in a right that is a fundament of a free, democratic society.

2. Open up to all sorts of use

In our fast-changing world, devising regulation that works only for a certain type of use is pointless. We see that with copyright everyday: provisions that had worked when music was distributed on CDs are dysfunctional in the age of internet.

So if you want an exception to work, do not write it for today’s technology – use broad terms that let people reproduce, distribute, communicate and make works available to the public, as well as  transform or adapt in any way they see fit and by any means technology allows them to.

3. Include all kinds of users

In today’s culture it is hard to say who is a creator and who isn’t. The teaching process takes place in a classroom but it also includes online instruction, non-formal settings and peer-to-peer learning. These conditions are constantly evolving and new settings for creation and teaching become widely recognized.

So if you want your copyright limitation to be truly great, consider that the circle of users who can benefit from it is not limited to labels such as “photographer”, “teacher”, “blogger” or “educational institution”. Do not limit access to specific groups of people.

4. If you have to limit, focus on the purpose

Some exceptions are limited in their purpose, just like the Estonian educational exception. It is broad and includes virtually everybody so if there was no limitation on it, it would effectively erase the use of copyright.

If there’s a must, the clever way to calibrate an exception is to focus on its purpose – in Estonia the broad educational use is only possible if it illustrates teaching and the process of learning in general. Any use that cannot be justified by the purpose is not considered to be exempted.

5. Consider benefits of commercial use

Users can benefit commercially from a parody in France or from a movie shot in a public space in Portugal. Consider that today it is very hard to determine if the use is commercial or not. If people post their pictures or memes on social media, would it be recognized as a commercial use? After all, Facebook is a commercial entity that monetizes the activity of its users.

An excellent regulation is a result of a cost and feasibility analysis. Would it be at all possible to enforce the non-commercial prohibition? Or would the cost and futility of it prevail over the benefits? If the answer to the latter is yes, allow use with a commercial benefit.

6. Make the use free of charge

The point of a copyright limitation is to make it simple, if not intuitive, for users to benefit from its existence. This would not be the case if a user had to pay for quoting a book or taking a picture of beautiful surroundings. In fact, if you have to pay, you can hardly call it an exception.

Copyright should enable rights holders to profit from creations. A copyright limitation is an exceptional case, where both the significance of public interest and the intuitiveness of use limit the copyright. Society benefits from it and the culture is richer. Make the use free.

You’ve now mixed all the ingredients, so make exceptions mandatory across EU!

The more flexibility EU allows in transposing its regulation, the more the legal systems in member states vary. Harmonizing the copyright in general and the exceptions in particular is crucial if we want to turn the Digital Single Market into something more substantial than a catchy phrase.

In Europe we have no internal borders anymore, but there are borders in the European internet and between member states’ copyright systems. These should be brought down, and the EU is in a unique position to do it.

Exceptions are a right and not a favour!

The good news is that we have many great copyright exceptions ready in the InfoSoc directive and waiting to be marked as mandatory across Europe. The hard work is done, EU, you can #fixcopyright with one simple provision and make Europe a better place!

• Download the Best Case Scenarios #fixcopyright poster
• Download the Best case scenarios for copyright – full brochure
• Read more at https://communia-association.org/bcs-copyright
• Talk to us: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post How to #fixcopyright with a great copyright limitation? A recipe for lawmakers appeared first on COMMUNIA Association.

Within the Best Case Scenarios for Copyright series, we present Estonia as one of the best examples for education. Below you can find the basic facts and for more evidence check the Best Case Scenario for Copyright – Education in Estonia legal study. EU, it’s time to #fixcopyright!

Exception/Limitation: Education

Country: Estonia

What is an education exception?

1. An education exception to copyright relates to cases where protected works of all types are used for educational purposes or scientific research, both offline and online.
2. The exception is justified by the public interest of access to education.

How does it work?

1. All acts that are necessary for educational purposes are exempted: users can copy, adapt, translate, and transform protected works.
2. All types of copyrighted materials that are publicly available can be used for teaching and study, including films, phonograms, and broadcasts.
3. It is possible to use a protected work to the extent required to fulfill the purpose of a particular teaching or scientific activity. If the use of an entire work is necessary, it also falls under the exception.
4. It is mandatory to credit the author of the protected work.

Who can use it?

1. Anyone can benefit from the general teaching and scientific exception, including citizens, organizations, and educational institutions.
2. Physical copies of works may be created by educational and research institutions, and by citizens in general for research and private study, under other exceptions.
3. Only educational institutions may take advantage of the right to organize recitals, plays, dance shows, etc., based on a protected work, performed in front of an audience. (see “limits” point 3).

Is it free?

It depends. No remuneration is due to the authors or rights holders of the works used for the educational purpose as long as no physical copies of the works are made.

What are the limits to the education exception?

1. Educational or scientific purpose is required – it is possible to use a work in education and scientific research, including in lectures, tests and teaching compilations, as long as it illustrates the process of teaching, learning or research.
2. Non-commercial use – users may not benefit commercially from the fact that they carry out scientific research or illustrate teaching with copyrighted works under the exception.
3. For performances, the audience is limited to the school’s close social circle – to benefit from the exception, a performance must be staged by students and staff for the audience consisting of people directly involved with the school, such as parents and caregivers.
4. The three-step test – by law, uses are only exempted if they do not conflict with the normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the rights holder. A correct application of the three-step test requires a fair balance between the public interest in access to education and the interests of the right holders.

Economic and societal impact

Estonia is one of the most technology-friendly countries in Europe, with widely used e-services for citizens, and excellent internet access. Many educational institutions, teachers, and researchers collect and share educational resources with their students and colleagues, as well as create online courses. This is a crucial trend in advancing the education in times when computers and mobile devices are becoming the primary point of access to knowledge and literacy. Taking advantage of technology in education is possible because of the wide and flexible education exception.

Examples of use

1. Estonian Information Technology Foundation for Education keeps a digital repository of thousands of teaching materials from over 60 vocational schools and universities.
2. An Estonian history teacher runs a blog, where she publishes her students’ works for further study and dissemination of knowledge.

Law

• Articles: § 19 subsection 2 and 3, and § 22 of the Estonian Copyright Act, adopted on 11 November 1992 (as last amended on 10 April 2016)
• The wording of § 2 section 2 is similar to the 2001 InfoSoc Directive that has been transposed in Estonia in 2004

Why we chose the Estonian example?

We believe that copyright benefits education when it stays out of the classroom. An exception or limitation to copyright for educational purposes must be flexible, neutral with regard to media type, format, and technology, and covering all necessary uses by all sorts of users. In other words, the best scenario for education would be a provision covering all exclusive rights and at least as broad as the EU exception under the InfoSoc Directive, which is only applicable to certain rights (reproduction, communication to the public, making available to the public, and distribution).

As far as we are aware, Estonia is the EU country that has come closest to a literal transposition of the InfoSoc provision. This has been done, however, without restricting the scope of application of the legal provision to certain exclusive rights.

The fact that we have selected the Estonian model does not mean, however, that this example is as good as it could be. There is one main legal provision in the Estonian Copyright Act and two other overlapping exceptions, one of which causes some interpretation issues on who can benefit from reproductions made for educational purposes. There are no court cases on the issue, but the most generous interpretation seems to prevail in educational practice in Estonia. This is probably due to the fact that the Estonian Copyright Act allows, since its original version, broad unauthorized uses of protected materials for educational purposes.

The planned Estonian copyright reform may resolve these issues on the legislative level. We sincerely hope, that the harmonization of EU copyright that includes a mandatory broad educational exception will solve it across Europe first.

Further reference

For details on how the educational exception functions in Estonia please see the Best Case Scenario for Copyright – Education in Estonia analysis prepared by Teresa Nobre, LL.M. IP (MIPLC) and Alari Rammo on behalf of the Communia Association.

• Download the Education in Estonia Factsheet
• Download the Best Case Scenario for Copyright – Education in Estonia
• Download the Best case scenarios for copyright – full brochure

Read more at https://communia-association.org/bcs-copyright

Talk to us: Best Case Scenarios for Copyright: @communia_eu @tenobre @a2na

Best Case Scenarios for Copyright is an initiative by COMMUNIA, presenting best examples of copyright exceptions and limitations found in national laws of member states of the European Union. We believe that, by harmonizing copyright exceptions and limitations across Europe, using as a model these best examples that are permitted within the EU law, the EU would reinforce users’ rights in access to culture and education.

The post Wide education exception is the best case scenario to #fixcopyright in EU appeared first on COMMUNIA Association.