We need to get a better copyright (reform) for education
The European Commission proposed changes to the outdated EU copyright framework. The last big update was from 2001. In the years following that directive member states implemented it to their specific jurisdictions, creating a patchwork of different laws across the EU, including the possible implementation of an exception for education.
Educators need the flexibility to improve on the teaching materials they use, increase access to quality education for to those who don’t necessarily have the funds, and the ability to enjoy the advantages of modern technology without breaking the law. Right now, even though the importance of education was foreseen by the European legislators, not all teachers in Europe have this flexibility.
COMMUNIA, who advocates for policies that expand the public domain and increase access to and reuse of culture and knowledge, asked copyright policy experts from civil society organisations like Wikimedia and Creative Commons about why the current copyright reform needs our input:
While most member states implemented the optional education exception from 2001 (see the CopyrightExceptions.eu database) it does not mean we can easily share teaching materials across borders, as all implementations vary. There are some pretty outrageous things that teachers aren’t allowed to do, for example: Finnish copyright law does not allow for creating derivative works in education without prior permission from rightsholders. So creating translations from foreign language news sites is not allowed.
The 2001 implementations of the education exception often left European educators with a pre-digital copyright. The EC heard our call for a more harmonised and modern copyright for education and proposed changes in the update to the framework now being discussed. Unfortunately, the proposal on the table is making it even more untransparent for educators what they can do legally.
What is proposed now
In short (you can read more about it here), the Commission chooses to not harmonise the existing exception we have in Europe, but adds a new mandatory exception, which has its faults:
- The proposed exception only applies to digital resources and online environments, leaving unharmonised most of the face-to-face teaching activities;
- The proposed exception only benefits educational establishments, which means that online and digital uses made by teachers and students not affiliated with educational establishments will not be exempted, e.g. educational programmes in museums;
- The proposed exception only covers digital uses in the classroom (e.g. whiteboards), and the online uses covered can only be made under the closed networks run by the educational establishments (e.g. intranet). Online uses in the open internet, namely uses of protected works in OERs and in MOOCs, will not be covered by the exception;
- It is unclear how the already existing unharmonised exception and this proposed new one will interact and will likely be confusing for teachers.
As a last note, which is in my opinion the most worrying about the Commission’s proposal for education: the override of the exception if an ‘adequate’ license exists. This is a rule which in practice makes the exception powerless as a tool for supporting education. If this override is applied by the member states, it means that prior permission before use needs to be negotiated. This creates an unwanted barrier for teaches again.
In short, this proposal is simply not good enough to support education in Europe. We need a better copyright reform for education.
How the reform can be better
A harmonised mandatory education exception for non-commercial use is needed. It should cover all uses in educational institutions and other formal and informal educational activities run by any person or entity, in and outside of the classroom. These benefits could be achieved by making the existing educational exception mandatory across EU to cover both analogue and digital use.
This is an update of an earlier opinion piece on the Open Education Working Group Blog published on September 23, 2016.
