Something borrowed, something new…
One of the copyright mechanisms available to ensure people can use copyright protected content for purposes like freedom of expression, access to information and right to education are ‘exceptions and limitations to copyright’. In order for these exceptions to be functional in the context of online use, they need to be uniform throughout the EU, which at present, they are mostly not.
In 2019, the EU legislator attempted to harmonise and modernise the European copyright framework through the Copyright in the Digital Single Market Directive (CDSM Directive). One of its goals was to ensure the proper functioning of digital and cross-border teaching and learning.
Article 5 of the 2019 Directive provides for a mandatory exception for the purpose of ‘illustration for teaching’ in the digital environment. Illustration implies the use of parts or extracts of works (but also entire works when they are smaller or cannot be divided) within educational materials, or other uses in the context of teaching and learning. However, the new provision may not be the best solution for the challenges faced by educators.
It should be noted that an exception for ‘illustration for teaching’ already exists on EU level in Article 5.3(a) of the InfoSoc Directive of 2001. The InfoSoc exception allows for the creation of copies and communication of protected works by anyone to the extent justified by the (non-commercial) purpose. This pre-existing exception is relevant to cultural heritage institutions because it has no restrictions in terms of who can benefit from it. So in countries where the exception is fully implemented, cultural heritage institutions can make use of the educational exception within their activities, including for courses and educational events.
Fragmented legal landscape
The problem with the InfoSoc educational exception from 2001 is that it is optional. This means that Member States are allowed to restrict it on a national level, or even not implement it at all. And while all Member States have pre-existing provisions which in some way encompass educational uses based on the exception, most have not transposed it in full.
Many jurisdictions limit its application in various aspects, such as subject matter, but also types of usage, payment of compensation and beneficiaries. While most Member States allow all users, including cultural heritage institutions, to use the educational exception, some of them restrict the coverage to educational establishments only. For example, in Poland the express exclusion of cultural heritage institutions from the scope of educational establishments is confirmed by national courts.
Enter the new CDSM exception, which was designed to work as a mandatory minimum of user rights protection where educational uses were concerned.
The new Article 5 – how mandatory?
Unfortunately, Article 5 of the CDSM Directive has a rather narrow scope. It covers use from educational establishments only, leaving out cultural heritage institutions and those engaged in non-formal education, and is limited to digital uses, creating fragmentation across Member States and between types of activities.
In addition, the nature of the new exception is not indisputably imperative. The Directive allows for Member States to limit application partially or even fully, either upon the availability of ‘suitable’ licences or at their full discretion. Member States may provide for the exclusion of certain types of works, such as materials primarily intended for education, and can determine that only a part of a work can be used. They can provide for a ‘carve-out’ concerning specific uses as well as for fair compensation to rights holders. Even the whole exception may be removed if ‘suitable’ licences are available. One has to wonder why the exception is even labeled as mandatory.
Digital use – yay or nay?
In addition, the language and rhetoric of the CDSM Directive exception seem to have led to misconceptions about the pre-existing InfoSoc ‘illustration for teaching’ exception which affect the implementation of the new directive into national law. National legislators seem to approach the pre-existing exception with the vague sense that it is inapplicable to digital uses. This misconception is largely spurred on by Article 5 of the CDSM Directive’s title – ‘Use of works and other subject matter in digital and cross-border teaching activities’ - and by non-binding text in the CDSM Directive suggesting that some digital uses for education might not be covered by the pre-existing EU exception.
However, the inherited InfoSoc ‘illustration for teaching’ exception is not limited to analogue use. Under the InfoSoc Directive, the provisions of Article 5(3) are technologically neutral. Therefore, the previous educational exception already should cover digital, as well as cross border uses.
This has resulted in Member States introducing the new CDSM exception in parallel with the existing InfoSoc one. In most cases they already have a rather broad, technology neutral pre-existing ‘illustration for teaching’ exception that will be left intact, creating uncertainty about how the two overlapping exceptions will interact and apply.
O harmonisation, where art thou?
Ultimately, the CDSM Directive’s approach does not differ significantly from the InfoSoc one. Even though it is declared to be mandatory, the new exception gives Member States enough options to have flexibility when it comes to implementation. If harmonisation of a clear legal safeguard to use in-copyright material for education is to be achieved, it will probably be either in the form of narrowing down the scope of the existing InfoSoc transpositions on national level, or in creating two parallel overlapping exceptions with no clarity on how to apply them whatsoever.
What does that mean for cultural heritage institutions? The risk for national courts to conclude that since the new educational exception covers digital uses, the inherited InfoSoc one must be restricted to analogue use, seems rather high. Unfortunately, the lack of consistency of the reform does not bode well for the goal pursued by the EU legislator —simplifying digital and cross-border educational uses, and ultimately, for legal certainty.