“Between hope and despair in the EU copyright reform- What's in it for education?”, by Nikola Wachter
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I am a teacher by training and I am concerned about the current European Union copyright reform. I am familiar with the day to day practices of preparing lessons, the search for the best picture, text snippet, piece of music or video that will help me to explain a certain topic, provoke the most interesting reactions or get my students excited because I have chosen their favorite musician, cartoon character or artist.
I am also an English language teacher and know well enough how important it is to create authentic opportunities for language learning. This includes collaboration and exchange across borders where pictures, music videos and other creative works are exchanged and discussed with classmates, but also with students from classrooms abroad.
The EU recognises that these issues need to be addressed and suggests an EU-wide mandatory exception for education and research activities in Article 4 of the current draft of the Directive on Copyright in the Digital Single Market.
At first sight one might want to applaud the current draft for acknowledging the importance of empowering teachers, researchers and education support personnel to make fair use of works regardless of where they are in the EU. Access to quality teaching materials is after all a key component of education as a human right and indispensable to Sustainable Development Goal 4 on quality education and will ultimately foster the development of prosperous societies.
At second sight, however, one will notice that the devil is in the details, because this exception is then dismantled step by step and user rights are, in fact, sidelined. As the directive is currently drafted it will not concede teachers fair user rights and it will not decrease legal uncertainties for using digital works for education and research purposes – not for teaching and learning at the national level nor for collaboration and exchange across the EU.
Step1) License opt-out: Instead of establishing a solid mandatory exception, the current proposal states that the exception can be replaced with license contracts when adequate licenses are available.
Apart from the criticism that it is not really clear what adequate or available means, there has been longstanding concern by different stakeholders about the unfair conditions licensors put on education institutions and teachers, who do not have the capacity to negotiate fair contractual terms.
For instance, rather than relying on a single piece of legislation (e.g. general copyright exemption), educators are required to read and understand the terms of the contracts for each different work or material that is covered by the license and might have to engage in burdensome bureaucratic tasks to report which works they have used.
This does not only increase legal uncertainties and teachers’ workload at national level, but also increases challenges for cross-border collaboration and exchange. Recent insightful research conducted by COMMUNIA draws attention to these issues in the case of Finland, France and the UK.
Step 2) Mandatory remuneration: For a good reason the majority of member states have copyright exceptions for education that are not remunerated or only partially remunerated. A mandatory remuneration clause would force all education institutions and/or teachers to pay for each use of copyrighted work. This would fundamentally undermine a balanced approach to copyright that safeguards the rights of creators and users.
Here it is important to note that education systems and institutions already pay substantial amounts of public money to often times deep-pocketed publishers to ensure access to quality teaching and learning materials. This includes payments for license contracts that cover the use of works beyond the scope of the domestic education exception.
Step 3) Exempting books from the exception: The latest proposal has been to exclude textbooks from the exception. This again weakens teachers’ user rights and creates barriers to making fair use of all works including textbooks.
Step 4) Educational use limited to secure environments and education institutions: This proposal is also surprising. Those who have worked in education know that teachers take their students on fieldtrips or to cultural heritage institutions. They also communicate via email and work across digital networks to exchange materials and collaborate across institutions.
Therefore, it does not make any sense for the current draft to only establish an exception for educational activities that take place on the premises of an education institution or in a secure online environment. Please, think more like an educator and less like a bureaucrat!
The European Trade Union Committee for Education (ETUCE), COMMUNIA and the European Federation of Education Employers just issued an important statement on Article 4, which I hope will be taken into account. But also beyond the dismantling of Article 4, numerous civil society actors have been raising concerns regarding the current directive including about article 13 (user uploads) and Article 11 (press publisher’s right) alias “Link Tax”.
As raised by many, the Directive has the potential to “break” the internet and have a negative impact on research, education and society at large. A reocurring critique has been raised that commercially driven actors have been dominating the discussions on the directive and it is concerning that so far other stakeholders have not been adequately consulted.
Copyright legislation can either empower teachers or create barriers, cause extra work or force teachers to infringe copyright so that they can do their job properly. I do believe in copyright that promotes creativity, learning and innovation and exceptions and limitations for education and research purposes have a fair part to play in this. On June 20-21 the European Parliament is going to vote on the Directive and I sincerely hope that they will choose to support a proposal that will truly support teachers, researchers and education support personnel to provide quality education and research – we don’t need more barriers, we need fewer.
Want to take action? Here are few sites:
The opinions expressed in this blog are those of the author and do not necessarily reflect any official policies or positions of Education International.