COMMUNIA spent the first term of Copyright Untangled showing why copyright is relevant to teachers, and why they should (unfortunately) care about it. First, we outlined a list of outrageous things teachers can’t do because of copyright. Of course, we’re aware that most teachers don’t know much about copyright laws, so we also tried to explain how they could leverage particular aspects of the law to make copyright work for them. We even argued that the right to quote could be a teacher’s best friend — in the absence of a rule that fully exempts all educational uses of copyrighted works.
Copyright laws across Europe (and around the world) can be very frustrating, because they do not treat education the way we think it should be treated: as a full exception to copyright, that would give educators the flexibility to freely use copyrighted works for all manners of teaching. But we can’t leave on summer vacation without showing you that, while most copyright laws in the EU don’t support teaching and learning, there are still some good examples of how to balance the interests of the public (and thus, education) with the interests of authors and right holders.
In Estonia we found an example of a legal provision that is flexible, neutral with regard to media type, format, and technology, and that covers all necessary uses by all sorts of users provided there are no commercial purposes involved. We consider that Estonia is the best case scenario for copyright in the EU educational arena.
In the EU, there’s a limit to what Member States can do in terms of their copyright laws. The so-called InfoSoc Directive (one of the most important EU copyright laws) harmonizes key rights granted to authors and other rights holders, and sets out an exhaustive list of exceptions and limitations to those rights (basically, a list of things you can do without the need to ask for permission). And while it’s mandatory for Member States to implement the rights, most of the exceptions — the checks and balances on authors’ rights — are optional. In other words, Member States aren’t required to implement limitations and exceptions, and when they do, they can choose to provide for an exception that is more restrictive than the EU one. This means that the spectrum of unauthorized uses might differ widely from country to country. In any case, Member States can’t allow more than what the EU law permits.
When it comes to education, there’s an optional exception in the EU law, which is quite generous. It does not restrict the beneficiaries (educational institutions, teachers, museums, etc.), the types of activities (the ability to make copies, perform a play, compile school materials), or the categories of works (text, images, music, etc.) covered by the exception. The only conditions — applicable to all uses — is that the activity in question must be of a non-commercial nature, and that the source of the work must be indicated.
Unfortunately, the great majority of Member States have not taken full advantage of the EU education exception: all Member States have an exception for educational purposes in their national laws, but some countries only permit certain entities to enjoy of the exception, others restrict the scope of unauthorized uses that can be made (e.g. some only cover face-to-face teaching activities), and others are drafted in a way that excludes certain types of works (mostly images and audiovisual materials).
What’s great about the Estonian education exception?
In the Estonian Copyright Act there is a rule that is very similar to (i.e. uses almost the same wordings than) the EU legal provision. As far as we are aware, this is the closest a national provision has come to the EU legal provision. And this is great because the EU legal provision uses abstract concepts (such as “non-commercial” or “illustration for teaching”) that still need to be defined by the Court of Justice of the EU. By making almost a literal transposition of the EU provision, Estonia just used whatever freedom (yet to be decided the the EU Court!) the EU gave to Member States.
Another positive feature of the Estonian law is that it exempts educational uses not only in relation to the rights expressly harmonized by the directive, but also in respect to all exclusive rights. This means that transformative uses (such as translations and/or adaptations to local needs) are also exempted in Estonia, even though they are (most probably) not covered by the EU exception.
What are teachers and students doing in Estonia that you can’t probably do in your own country?
In Estonia, copyrighted works are widely copied, adapted, performed, compiled, distributed, and made available not only in closed e-learning environments, but also in publicly accessible online platforms.
Estonia’s quasi-governmental Information Technology Foundation for Education (HITSA) hosts a digital repository containing thousands of teaching materials from more than 60 vocational schools and universities, including materials still under copyright. Other major online sources are Koolielu (also managed by HITSA) and e-koolikott. These websites host original or compiled materials, and also provide links to other online resources.
Some educational institutions, such as the Laagna Secondary School, are uploading materials onto their own public websites. One history teacher from this school has created her own blog to share a wide variety of materials with students, including some of the students’ own works.
Could the Estonian legal provision be better?
Definitely yes. The fact that we have opted to showcase the Estonian model does not mean that the same is perfect. There are basically two drawbacks:
- First, the Estonian copyright law has 3 different rules dealing with educational uses. There is this very generous norm, that I’ve mentioned above, and then there are two other overlapping norms, which deal with some of the same things that are regulated in the first norm. This make things harder to understand. And I say harder for teachers and students, of course, but also for lawyers and judges — i.e. really difficult!
- Second, those two extra legal provisions are only for the benefit of educational institutions and/or research institutions. Say you are a museum or a non-profit providing some sort of training: you can’t probably benefit of those exemptions.
So, if you are a teacher in an educational institution, none of those things are a problem for you, because at the end of the day your use will be covered by either one or the other norm. But if you are teaching or learning in a different environment, you will face more obstacles than your peers in formal education systems.
What would be the real best case scenario?
The best case scenario would be a single norm — like the EU legal provision — dealing with all educational uses of copyrighted works. This way, no one would need to analyze each and every potential use of copyrighted content to determine if (and how) their use fits under a particular exception.
Want to know more about the Estonian education exception? Please read our study here.
This post is part of the Copyright Untangled education series. You can find the other pieces written in this series here: https://medium.com/copyright-untangled.