Creating a copyright exception for education — four principles to keep in mind

De schoolmeester, Bernardus van Schijndel

The provisions establishing exceptions to copyright (ie. provisions allowing the use of work without a consent of a copyright owner) are among the most important provisions in copyright law. But provisions establishing an exception to copyright for educational purposes are especially important. The rationale for this exception seems simple: we have a collective public interest in supporting education and learning, and these interests should take precedence over exclusive rights of copyright owners. Let’s try to figure out what we’d expect from a modern educational exception to copyright. In our post we’ll explore four principles that should be the basis for a education exception.

1. Type of use, not type of user

The legislation establishing the educational exception should not take into consideration who uses the work but for what purpose the work is used. In other words: anyone who wants to participate in the education process should be treated the same way, regardless of whether it is a public university, high school, private language school, local club-room or NGO. If the individual or organization is involved in teaching and learning, then the exception could be considered to cover their use.

The development of technology gives us a chance to make the process of education more egalitarian and far more diverse — more so than it was even 10 years ago. We should seize the opportunity of including non-formal education processes into the category that can be covered by educational exceptions to copyright.

Teachers today have tough jobs: they have to manage students with varying learning styles, meet standardized education objectives, and continue to build and refine their teaching skills. With all this and more, teachers in the 21st century should not have to also overcome obstacles such as lack of access to educational resources. Many of these materials are within reach online. When teachers are looking for employment they should not have to consider which institution is able to afford all the licenses for the educations materials they wish to utilize in their teaching. And teachers should not have to depend the quality of the education they’re able to deliver based on legal agreements schools have made with publishers. Teachers should be given a wide berth to utilize the educational content that is best suited to meet the specific teaching and learning objectives for their students. They should not have to worry about copyright law and potential infringement penalties. Today we have the opportunity to make this possible, but we’re not there yet.

On the internet you can find one of the best tools for learning foreign languages — YouTube. Thanks to that students do not have to buy exclusive books with professional recordings on CD created by voiced actors who were hired by university publishing houses. This is unnecessary, because you can find for them a valuable free video in which they will hear the language in its natural, everyday sound. If necessary you can show your charges the movie about lynx from Bialowieża Forest or about picea sitchensis from Alaska — you don’t need to import a DVD disc from the other end of the world. And copyright law should allow you to do that, regardless of the following factors:

1) who you are;

2) who your students are;

3) where do you watch the videos.

The use of copyrighted works under an education exception should take into account only one aspect: whether teachers are using the materials for educational purposes.

2. Technology-neutral

The educational exception should be neutral in terms of technology. It shouldn’t matter how (technologically) you use the work — for example a traditional textbook or an electronic version. It also shouldn’t matter how the education is conducted — copyright law must take into account that today’s ‘learning’ includes ‘e-learning’.

Through initiatives such as edX and individual teachers uploading materials, education can be truly global — you can participate via the web in classes held thousands of kilometers away. Copyright should not differentiate whether a teacher is physically handing a student a paper worksheet, or emailing and assignment from Poland to Italy.

We must not bind the hands of schools in utilizing copyrighted materials and technologies that can change society for the better. We need to allow teachers to take advantage of the many new resources available to them, instead of requiring them to use outdated materials and methods. Schools have the opportunity to focus less on providing information to students, but to teach how to find resources and build skills and competences in their students to learn in a modern way. How can we expect schools to educate future generations if we do not give them the capability to use modern tools to prepare students for lifelong learning and productive careers?

3. Clear

Clarity is important so that teachers know exactly when they can rely on the educational exception and when they cannot. Teachers are not copyright specialists, nor should they be. Teachers need to focus on how best to run classes, not on whether they are committing a crime by showing a video or sharing an online article.

In several countries teachers have the legal opportunity to show the movie within the education exception but at the same time they’re afraid to do so. And school directors, to be on the safe side, prefer to purchase a license pack from specialized for this purpose companies whose business model is based on the visiting schools and threatening copyright infringements. And such licence packs can be very expensive — in Poland one of international copyright licensing agencies collected from schools fees amounting from PLN 700 (for one show) to PLN 4000 (flat rate for the year). In the case of many Polish schools PLN 4000 (approx. EUR 950) is the cost of annual fees for internet access!

An unclear law creates more confusion, needless costs (financed by public money), and time spent inefficiently by teachers on how they need to work around the law instead of focusing on providing a quality education with the resources and tools they require.

We have to remember, however, that we cannot have our cake and eat it too. That is to say: the more the detailed and complex the law is, the more difficult it is to apply in situations which do not fit to the cases foreseen in its drafting. There needs to be a balance between clear rules that teachers can understand, and a flexibility in the law that can include uses in education not within our understanding (technological or social) today.

4. Mandatory

The education exception should be mandatory for all member states of the European Union.

In the previous principles we discussed how we can write up the best education exception suited for a digital society. This exception, even if written up in a copyright directive, means nothing if the different member states in Europe implement it differently. As we have seen with the implementation of the Information Society Directive, giving member states the option to ignore certain exceptions leads to a patchwork of copyright rules in Europe that makes it extremely difficult to promote cross-border educational activities. Europe wants to adopt a Digital Single Market strategy, and a mandatory exception for education would help greatly to meet that goal.

Do you agree with these principles? Are there other principles you think should be considered? Please comment below. The next blogpost in this series will be about viewing teachers as creators, not just as a service hatch for publisher content. We will tap into the open education movement here. It will be published in two weeks, so please subscribe to the publication Copyright Untangled.