Copyright Limitations and Exceptions for

Education in the EU

Prof. Raquel Xalabarder

Universitat Oberta de Catalunya – UOC

Barcelona, 20 Sept. 2012

Workshop on Training on Open Content Licensing in Europe

Use of copyrighted works for purposes of education has always been allowed by Copyright laws and international instruments

BC (and even EUCD) are user/teaching friendly

Yet, exempted educational uses remain a matter for domestic laws … and domestic laws are not so generous

Fragmented (non-coherent)

Insufficient (online uses are discriminated)

A fragmented and insufficient approach to ensure education :

Insufficient : In analog world:

• Teaching is “self-contained”

• Minimal economic significance

• Quotations / private use-study limitations

In digital world:

• Broad interpretation of exclusive rights no-room for “de minimis” uses

• Specific language, narrow in scope (upload / transmission / download)

• Further restricted by DRM + licensing terms

Fragmented:

• Quotations (art.5.3d EUCD / art.10.1 BC) Some teaching uses are already exempted as quotations (and should

remain so)

• Exceptions for teaching purposes (art.5.3a EUCD / art.10.2 BC)

• Private use/study/copying (art.5.2b EUCD / art.9.2 BC) May exmempt copies /downloads by students

• Library exceptions (art.5.2c EUCD / art.9.2 BC) To obtain the works that will be used for teaching purposes

International instruments Art.10.2 BC: use by way of illustration in

publications, broadcasts or …recordings for teaching

Art.15.1(d) RC: use solely for the purposes of teaching // Art.15.2 RC: extend BC ones

Art.10.1 BC: quotations (mandatory nature) ‘Minor reservations’ (Brussels 1948) Art.9.2 BC: “three-step-test”

also in digital contexts Art.10 WCT, Art.16 WPPT

TEACHING PURPOSES

Berne Convention, Art.10(2): “It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice”

“by way of illustration …for teaching” read in a broad sense:

• distance education (“broadcasts” since 1967) and

• teaching compilations (“publications” since 1886);

provided the use is “compatible with fair practice”

… in any format (clear intent to cover any new formats):

• digital distance education (on-line) and

• digital teaching compilations (web-based).

left to domestic laws (non-mandatory exception).

International instrumentsOpen: All works and subject matter All acts of exploitation (including translation)Neutral: Technologically neutral: also online usesFlexible: Educational purposes (instruction, making of

compilations and recordings) To the extent justified by the purpose Compatible with fair practice …and three-step-test! Remuneration: not required, but allowed

EU Directive 2001/29/EC: Article 5.3(a): Member States may provide for exceptions or limitations to the rights of reproduction and communication to the public, in the case of:

“use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.”

Art.5.3 exempts rights of reproduction + com.publ. (making available online) - (Rec.42: “might also exempt certain uses in the context of on-demand delivery of works”)

Digitization ? Translation ? Distribution?

face-to-face, as well as “distance learning” (Recital 42) and “the new electronic environment” (Explan. Memorandum)

analog and digital media and supports (technology-neutral)

might also cover digital teaching compilations (Explan. Memo)

all works covered … to the extent justified by the purpose

eligibility: “non-commercial nature of the activity” (Recital 42: “organizational structure and means of funding… not decisive”)

”illustration for teaching” (= art.10.2 BC?) something more than a quotation or a private copy!

equitable remuneration not required (but art.5.5 EUCD)

Non-mandatory to EU Member States

… Exempted educational uses remain a matter for domestic laws … not so generous!

Divergence in national laws

National laws : multiple limitations Educational uses:

Teaching (lectures, exams, debates, work in class, etc) Compilations for teaching / educational use School events

Quotations works commented, debated, analysed… Private Copy/Use students’ copies? Fair Use/Dealing (Common law systems) Library uses

Loopholes (and overlaps) among exempted uses: preservation, research… why not teaching purposes?

Online libraries “discriminated”

National laws: Educational usesHeterogeneous solutions: Purposes: education, teaching, instruction, lessons,

examinations (… multiple technological contexts) Exempted acts: photocopying, performance, reproduction,

distribution, broadcast, making available online (intranet), translation, digitization?

Works covered: all kind of works v. some works Benefiting institutions: public, non-profit, all levels? Scope: flexible (extent necessary, fair practice) or limited (as

to amount, number of copies) Remuneration: required, allowed, for free

National laws: EU / EEA Any use (may include online uses, translation, etc.)

Cyprus, Czech Rep., Estonia, Latvia, Liechtenstein, Poland, Switzerland

Reproduction (distribution), public com., making available online Art.5.3a EUCD

Belgium, France, Germany, Italy, Luxembourg, Malta, Netherlands, Portugal, Romania, Slovakia,

Translation: Malta, Netherlands, CH

Reproduction (distribution), performance limited to F2F contexts

Austria, Bulgaria, Greece, Hungary, Lithuania, Slovenia*, Spain

Extended collective licensing (cover online uses) Finland, Denmark, Iceland, Norway, Sweden

National laws: EU / EEA Beneficiaries

educational establishments, schools, universities, etc. Overlapping with library limitations? Gaps with library limitations?

non-commercial purposes v. non-commercial institutions? elementary, secondary, university, official degrees, ‘adult’ education?

Nature and extent of works Specific restrictions (# copies, %, fragments, isolated, exclusions …) Lawfully disclosed works (to extent justified by purpose)

Remuneration 5 countries require it: Belgium, France, Germany, Switzerland, Netherlands

(statutory compulsory license) 3 are silent: Luxembourg, Portugal, Italy The rest, non-remunerated (teaching uses allowed for free)

Further requirements fair practice, three-step-test, name and source indicated limited recipients (for online uses: access control)

National laws : Teaching usesEU/EEA:

Any use: 7

Specific acts,

including online: 10

Perf. & Reprod.: 7

F2F + Ext. Col. Lic.: 5

Non-EU:

Perf. & Reprod: 3

Only performance: 2

Only reproduction: 130

2

4

6

8

10

12

14

Anyuse

Online F2F ECL OnlyPerf.

OnlyRepr.

EU/ EEA Non-EU

Slide extracted from WIPO Study on Copyright Limitations and Exceptions for Educational Activities, by R. Xalabarder, December 2009, SCCR/19

National laws: UKCA Non-reprographic copying for instruction Anything done for purposes of examination Performance, playing, showing for instruction (not online) Making recordings of broadcasts and cable programs for

later educational use (failing licensing scheme) Reprographic copying (of ‘passages’, percentages) for

instruction (failing voluntary licensing schemes) digitization allowed under license

Making of teaching anthologies for use at educational establishments (very restricted)

All of them: provided it is fair dealing, for free (remuneration only under licensing schemes)

Voluntary licensing systems in place (cover online uses)

National laws: NetherlandsArt.16:

1. Reproduction or publication of parts of a literary, scientific or artistic work exclusively for use as illustrations for teaching purposes, so far as justified by the intended and noncommercial purpose will not be regarded as an infringement of copyright, provided that:

1o. the work from which the part is taken has been published lawfully; 2o. the adoption is in accordance with what might reasonably be accepted under

the rules of social custom; 3o. the provisions of Article 25 have been observed; 4o. so far as reasonably possible the source, including the author’s name, has

been clearly indicated; and 5o. a fair payment is made to the author or his right-holders.

2. In the case of a short work or a work as referred to in article 10, paragraph 1, sub 6°., 9°. Or 11°., the entire work may be taken over for the same purpose and subject to the same conditions.

4. The provisions of this article shall also apply where the reproduction is in a language other than the original.

National laws: Spain (1) It shall be lawful to include in one’s own work fragments of the works of others,

whether of written, sound or audiovisual character, and also to include isolated works of three-dimensional, photographic, figurative or comparable art character, provided that the works concerned have already been disclosed and that they are included by way of quotation or for analysis, comment or critical assessment. Such use may only be made for teaching or research purposes and to the extent justified by the purpose of the inclusion, and the source and the name of the author of the work shall be stated.

(2) Professors of official education will require no authorization by the author to perform acts of reproduction, distribution and communication to the public of small fragments of works or of isolated works of art, or of photographic or figurative nature, excluding textbooks and university treatises, when such acts are done only for purposes of illustration of their educational activities in the classrooms, to the extent justified by the non-commercial purpose and provided that the works have been previously disclosed and that –unless it proves impossible- the name of the author and the source are included. The former paragraph does not include the reproduction, distribution and communication to the public of compilations or collections of fragments of works or of isolated works of art, or of photographic or figurative nature.

National laws: Cyprus7.—(1) Copyright in a scientific, literary, musical or artistic work or a

cinematograph film or photograph shall consist in the exclusive right to control the doing in the Republic of any of the following acts: the reproduction in any form, sale, rental, distribution, lending, advertising, exhibiting in public, the communication to the public, the broadcasting, the translation, adaptation and any other arrangement, of the whole work or a substantial part thereof:

Provided that copyright in any such work shall not include the right to control—

(j) any use made of a work by such public libraries, non-commercial collection and documentation centres and scientific institutions as may be prescribed, where such use is in the public interest, no revenue is derived therefrom and no admission fee is charged for the communication, if any, to the public of the work thus used;

(r) Any use of works, to the extent justified by the non-commercial purpose to be achieved

Austria: Art.42(6) « Schools and Universities shall be allowed to make and distribute copies of works for purposes of school use and/or teaching in the context of their academic activity, in the quantities required for a specific class or academic activity (reproduction for teaching purposes), on the supports provided for under paragraph 1 [paper and any similar supports] only for non-commercial ends. The authorization to reproduce works for use at school shall not apply to works which by their nature and designation, are intended for school use or teaching.» U.K.: Sec.32 « (1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying (a) is done by a person giving or receiving the instruction, (b) is not by means of a reprographic process, and (c) is accompanied by sufficient acknowledgement, and provided that the instruction is for a non-commercial purpose.»

Greece: Art.21 Reproduction for Teaching Purposes.- « It shall be permissible, without the consent of the author and without payment, to reproduce articles lawfully published in a newspaper or periodical, short extracts of a work or parts of a short work or a lawfully published work of fine art work exclusively for teaching or examination purposes at an educational establishment, in such measure as is compatible with the aforementioned purpose, provided that the reproduction is effected in accordance with fair practice and does not conflict with the normal exploitation. The reproduction must be accompanied by an indication of the source and of the names of the author and the publisher, provided that the said names appear on the source.»

Italy: Art.70(1) « The abridgement, quotation or reproduction of fragments or parts of a work and their communication to the public shall be free if they are made for the purpose of criticism or discussion, within the limits justified by such purposes and provided that they do not constitute competition with the economic exploitation of the work; if they are made for purposes of teaching or scientific research, the use must –in addition to the above- be made for illustration and non-commercial ends.»

Netherlands: Art. 16 «1.-  The following shall not be deemed an infringement of copyright in a literary, scientifc or artistic works : (a) the taking over of parts of works in publications or sound or visual recordings made for use as illustrations for teaching purposes, provided : 1º the work from which was taken over has been lawfully communicated to the public ; 2º the taking over is in conformity with that which may be reasonably accepted in accordance with social custom ; 3º the provisions of art.25 have been taken into account ; 4º the source is clearly indicated, together with the indication of the author if it appears in the source ; and 5º an equitable remuneration be paid to the author or his successors in title.»

Luxembourg: Art. 10 « Once the work, other than a database, has been lawfully made available to the public, the author cannot prohibit: …(2) the reproduction and communication to the public of works for illustration of teaching or for scientific research and to the extent justified by the non-commercial ends to achieve and provided that such use is according to good practices and that –unless it is impossible- the source included the author’s name is duly indicated.»

Germany: Art. 52.a « (1) It is allowed to communicate to the public small parts of a work, short works or isolated articles of newspapers or periodicals, 1. for purposes of illustration for teaching in schools and universities only for the participants in a course ; or 2. only for a limited circle of persons for their scientific research; to the extent that the communication to the public is necessary for these purposes and is justified for non-commercial purposes. (2) The communication to the public of a work designed for teaching purposes can only be made with the authorization of the author. The communication to the public of a filmwork can only be made with the authorization of the author in the two years following the start of the exploitation of the film. (3) It is also allowed under paragraph 1, to make reproductions related to the communication to the public to the extent necessary for that purpose. (4) The communication to the public under paragraphs 1 and 2, as well as reproductions made in relation with it, grant a right to an equitable remuneration in favor of the author. These rights can only be managed by means of a collecting society.”

QUOTATIONS EU Directive Art.5.3(d): Member States may provide for exceptions or limitations to the rights of reproduction and communication to the public, in the case of:  

“quotations for purposes such as criticism or review, provided that they relate to a work or other subject matter which has already been lawfully made available to the public, that, unless this turns our to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose.”

Quotation limitations in national laws are narrower :

•Restricted to specific purposes (teaching not included)

•Restricted to only some kind of works, to short fragments, etc

LIBRARIESEU Directive Art.5.2(c): Member States may provide for exceptions or limitations to the rights of reproduction, in the case of:  

“in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage.”

-only covers reproduction! …no “delivery”? (Rec.40: “no online delivery”) / art.53.a) German Law

-no compensation requirement (albeit art.5.5 EUCD)

Library limitations in national laws are even narrower:

-specific purposes (preservation, research, study, etc)

-Educational establishments are not included gaps!

Teaching compilations: • On-line asynchronous teaching results in the making of teaching compilations.

• Covered by Art.10(2) BC and Art.5.3(a) EU Directive.

• Not by domestic laws:

- Allowed, remunerated, subject to regulations and compulsory licensing (Italy, U.K)- Allowed, free after the Author’s death (Greece)- Author’s consent while alive (Belgium)- Silence (France, Spain) not enough for DDE: only cover reproduction, only fragments, etc.

National laws: Teaching Compilations

Common Law Countries 3 non-remunerated: Canada, UK, Ireland Not exempted in 2 countries: USA, Israel

EU/EEA: 8 (10) non-remunerated: Bulgaria, Czechia, Cyprus,

Greece, Hungary, Latvia, Lithuania, Romania (UK, Ireland) 9 remunerated: Austria, Estonia, Germany, Italy, Nether.,

Poland, Portugal, Slovenia, Belgium (upon author’s death) 5 with extended collective license: Denmark, Finland,

Norway, Sweden, Iceland Not exempted in 7 countries: France, Liecht., Lux.,

Malta, Slovakia, Spain, Switzerland 0

2

4

6

8

10

12

14

Non-Rem.

Rem. ECL Notexempted

Common Law EU/ EEA Others

OTHERS (Non-EU/EEA): 13 non-remunerated: Albania (incl. translation), Andorra (only reprod.), Armenia,

Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkey?, Ukraine, Uzbekistan,

3 remunerated: Bosnia & Herz., Macedonia, Croatia (only reprod.) Not exempted in 3 countries: Moldova, Montenegro, Serbia

Private use/copying:

• Art.5.2 EU Directive: “reproduction made by a natural person for private use”• Domestic laws: “use” vs. “reproduction” / “private use” vs. “research and study” Likely to cover downloads made by students, of works used for teaching.

National laws: School Events Common Law Countries All 5 exempted: USA, Canada, UK,

Ireland, Israel

EU/EEA: 17 exempted: Belgium, Bulgaria,

Czechia, Estonia, Germany, Greece, Hungary, Latvia, Poland, Romania, Slovakia, Slovenia. Denmark, Iceland, Finland, Norway, Sweden.

Non EU/EEA: 4 exempted: Armenia, Bosnia &

Herz., Croatia, Macedonia

0

5

10

15

20

Exempted Non-exempted

Common Law EU/ EEA Non-EU/ EEA

Voluntary LicensingFor all non-exempted uses voluntary licensing Collective licensing:

voluntary (USA), “stirred” by legislator (UK), extended (Nordic countries)

Practical difficulties: CMO’s insufficient mandate of rights (ultimately voluntary) Difficult to enforce (users not willing to accept them)

Individual licensing - Practical difficulties: identifying & locating owner timely responses Unreasonable terms & prices (fear of downstream uses,

insensitive to needs of education)

Voluntary Licensing Unbalanced interests?

Denial of license (right to prohibit use of a work for teaching purposes)

Should (to what extent) authors’ exclusive rights prevail over education?

DRMs and licensing terms further restricting educational uses? We must be vigilant on how practices evolve and ensure

teaching exceptions remain effective Voluntary licensing schemes (and DRMs) are insufficient

(in most countries) and can’t be trusted to find the right “balance” between interests at stake

Conclusions Fragmented, insufficient, non-uniform solutions Online teaching uses discriminated (not all national

legislators are sensitive to needs of online education) E&L should be technology-neutral (under different conditions)

Lack of an international uniform rules aggravated by the “territoriality” of copyright: de facto impediment for the development of digital distance education within a lawful copyright framework.

Education is a strong public interest Exceptions and limitations should be a matter of strict public policy (addressed by the law): Mandatory limitations!?