While at the beginning of the week only three Member States had fully implemented the Directive (the Netherlands, Hungary and Germany), and could therefore be scored on all performance levels, it is already possible to track the level of activity across the board. As more Member States reach the finish line, we will attribute final scores and throw them into the contest. 

The first, second and third places (so far!)

So far, Germany is the front runner: the Federal Ministry of Justice and Consumer Protection held a transparent and inclusive discussion, which lasted for more than a year, and set a high standard for protecting user rights against overblocking. Hungary is in second place, in part due to the bonus point it got for fast-tracking the implementation of the new digital education exception, during the outbreak of COVID-19, having created room for remote teaching while educational institutions were closed. The Netherlands have been the first out of the door, with a draft text ready for an online consultation less than a month after the publication of the Directive, but the Dutch government failed to demonstrate its commitment to protecting user rights in the implementation, pushing it to the third place so far (with the possibility to still earn some extra points, if the Minister of Justice decides to make use of the power that received in the implementation law, to provide further rules for the application of Article 17).

France and Denmark, which have rushed to implement on time only the provisions that strengthen the position of creators and right holders, have been scored for the implementation of Articles 15 and 17, but will only officially enter the contest once they have implemented the remaining parts of the Directive.

Skipping the parliamentary debate

At this point, all Member States (except Portugal) have, in some way or another, initiated the legislative procedure, but some processes have been far from transparent or inclusive. In France and Italy, the Parliament delegated the legislative powers in the government, meaning that those countries will skip a central stage of the democratic process, which is the parliamentary debate and vote over the concrete implementation proposal put forward by the government. In France, where the Ministry of Culture went through the implementation of Articles 15 and 17 without providing any opportunity for stakeholders to share their views and concerns about those provisions, no public consultation is expected for the remaining parts of the Directive. In Italy, the Ministry of Culture is said to be planning to, at least, run a public consultation once its draft decree is finalized.

In Ireland, the Department of Business, Enterprise and Innovation held a series of public pre-draft consultations, each focused on a different part of the Directed and all carefully prepared, but a few days ago announced that the Directive was going to be transposed into Irish law by way of regulations contained in secondary legislation, without submitting the actual draft law to public discussion and without further parliamentary debate.

In Spain, a first round of public pre-draft consultations was organized at the end of 2019, but since then the Ministry of Culture went silent, leaving meeting requests by civil society representatives unanswered, while at the same time meeting with collecting societies and other industry representatives. Most recently, there have been rumours of a Royal Decree that would give the Spanish government the power to also implement the Directive without any further parliamentary deliberation.

Portugal is the slowest country so far (it has not published any draft text and has not even organized a public consultation), and civil society representatives have also been treated less favourably by the Ministry of Culture than representatives of rightholders: the latter have been invited to provide feedback on the implementation and have been granted the opportunity to meet with the Minister of Culture, while meeting requests sent by civil society organisations (including by COMMUNIA) to the Ministry have been left unanswered.

Meaningful consultation procedures: some more, others less

Fortunately, the procedures in that handful of countries seem to be the exception, rather than the rule. The vast majority of Member States attempted to give all stakeholders, and not only a selected few, opportunities to participate in the discussions. Some countries decided to consult stakeholders at the very beginning of the process, before embarking in the drafting process, others kept discussions alive throughout the process, and others yet reserved most time for dialogue after releasing the draft.

Of the 19 Member States that organized pre-consultation processes, 8 held formal consultations, 8 opted for setting up working groups or entering into other forms of dialogue with stakeholders on the provisions of the Directive, and only 3 organized both a consultation and meetings with stakeholders before starting the drafting process. After the release of the draft, 7 countries organized formal consultations, 6 engaged in dialogues with stakeholders, and 2 (Germany and the Netherlands) opted by running formal consultations and engaging also in constructive dialogues with the stakeholders.

So far, Greece, Italy, Finland, Malta, Norway, Portugal, Poland, Spain, Sweden are the only countries that have not publicly released any draft implementation text. France and Denmark have yet to release proposals for the parts of the Directive that have not yet been implemented.

It is safe to say that the Eurovision DSM contest is far from over, and that the results can still change dramatically. We will keep tracking the process and updating not only each country’s scores, but also each country’s page in our implementation tracker, where detailed information and documentation about each process can be found.

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Fast implementation of the new exception to permit remote teaching during COVID-19

Just as in several other EU Member States, in Hungary as well the stakeholder consultations regarding the implementation of the DSM Directive are still ongoing. Yet, the provisions set out in Article 5, namely those concerning the use of works in digital and cross-border teaching activities, have already been implemented and the relevant amendments to the Hungarian Copyright Act (No. LXXVI of 1999) came into effect on 18th July 2020. The reason? Urgent need for modern copyright rules enabling schools to swiftly transition into distance education during the COVID-19 pandemic and distribute learning material digitally.

What was the copyright framework for education in Hungary?

Before the DSM directive has been adopted, the Copyright Act already regulated the exception for education as a ‘free use’ in its Section 34:

(2) Part of a published literary or musical work or of a film, or small entire works of such nature as well as pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works may be borrowed for the purposes of illustration for school education and scientific research, while indicating the source and the author named in such work, to the extent justified by the purpose and on the condition that the recipient work is not used for commercial purposes. Borrowing shall mean the use of a work in another work to an extent exceeding quotation.
(3) The non-commercial reproduction and distribution of the recipient work mentioned in paragraph (2) shall not require the author’s authorization if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page.
(4) The work may be adapted for the purposes of school education in the course of educational activity. The authorization of the author of the original work shall also be necessary for the use of the work thus adapted.

The condition of non-commercial use has been adopted following the implementation of the InfoSoc directive. Paragraph 2 regulates ‘borrowing’ for a defined catalogue of works. Importantly, unless it is a ‘small work’, only a certain part of the published work can be borrowed. Importantly, as opposed to paragraph 1, which regulates quotation, paragraph 2 allows for free use of even pictures of works of fine art, architecture, applied art and industrial design creations, and photographic works. Furthermore, borrowing for educational purposes is limited to use in another work (to an extent exceeding quotation). Paragraph 3 allows for the ‘reproduction’ and ‘distribution’ of the recipient works included to the above referenced catalogue, provided that the recipient work is published as a textbook or reference book and the school’s educational purpose is indicated on its front page.

Definitions of educational purpose has been provided in Section 33 (4):

(…) the use shall be regarded to serve the purposes of school education if it is implemented in accordance with the curriculum and educational requirements in kindergarten, primary school, secondary school, vocational training and technical school education, in institutions of primary education of arts, as well as in higher education falling under the scope of the Act on higher education.

Lastly, Section 35(5) on private copying also included relevant, education-related rules: “Parts of a work published as a book, as well as newspaper and periodical articles may be reproduced for the purposes of school education in a number corresponding to the number of students in a respective class, or for the purposes of exams in public and higher education in a number necessary for that purpose.”

The main takeaways are that the previous system did not include a licensing scheme as seen in other European jurisdictions, especially in Scandinavia. Furthermore, it was applicable for only certain types of works, which had to be published, and the relevant exceptions meant a free use, without financial compensation to the author. These rules were complemented by those on quoting in Section 34 (1).

What changes were introduced to the existing education exceptions?

These fundamental features of the Hungarian Copyright Act are not affected by the implementation of the DSM directive. For easier review, all amendments are briefly listed below:

1. The definition of educational purpose has not been changed, although following the final implementation of the remaining articles in the DSM directive, it may be renumbered.
2. Section 33/A is adopted in line with the DSM directive, codifying the definition of ‘secure electronic environments’ in a technology neutral manner. In accordance with this definition, Section 34 (4) is amended to clarify that the listed works may be adopted for the purposes of school education in the course of educational activity, even via secure electronic environments. Importantly, authorization of the author is still required for use under Section 34 (4).
3. The wording of Section 34 (3) is replaced with the following wording: “The authorization of the author is not required for the recipient work under paragraph (2) (a) for reproduction and distribution, if the recipient work, pursuant to the relevant laws, is published as a textbook or reference book and the school educational purpose is indicated on its front page, or b) for school education [33. § (4)] for use in digital form at the place education, on an electronic device, or for transmission to the public via a secure electronic environment, provided that such uses are not made on a commercial basis.” The novum here is of course Section 34 (3) (b), where ‘use in digital form at the place of education’ and ‘transmission to the public via secure electronic environment’ are added as cases of free use under the already existing framework for exceptions related to education. This means use without authorization of, and financial compensation to, the author.
4. Section 34 (3a) provides that use within the meaning Section 34 (3) (b), shall be deemed to occur solely in the Member State where the educational establishment is established. This amendment again, does not divert from the wording of the DSM directive.
5. Section 35 (5) is amended by allowing for distribution of parts of a work published as a book, as well as newspaper and periodical articles to the pupils and students concerned, as well as for making those works available to them on request through the secure electronic network of the educational institution.

All in all, it seems the Hungarian legislature has succeeded with a DSM directive conform implementation of Article 5, that fits in with the previous Hungarian system of educational exceptions, provides additional, digital ways in which the free use of borrowing for education purposes can be exercised, without creating additional barriers for places of education.

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