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Education briefing - Education update on the new Directive on Copyright in the Digital Single Market

  • United Kingdom
  • Education - Briefings

02-04-2019

On 26 March 2019 the EU Parliament approved the proposed Directive on Copyright in the Digital Single market by 348 votes for to 274 against. The new Directive aims to facilitate the harmonisation of copyright protection across each Member State in relation to online content. It is accepted by the EU that the current legislation in relation to copyright is outdated and not adept to provide protection to online protected material.

Much of the press has focussed specifically on Articles 11 and 13 which serve to be the most ‘controversial’ parts of the Directive. However our principal focus for this Brief is on the education related exceptions that are some of the main focusses of the Directive and which have been subject to much less discussion by commentators. 

The EU Commission have acknowledged that:

“in the fields of research, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and limitations and that the optional nature of current exceptions……may negatively impact the functioning of the internal market. This is particularly relevant as regards cross-border uses, which are becoming increasingly important in the digital environment. Therefore, the existing exceptions and limitations in Union law that are relevant for scientific research, teaching and preservation of cultural heritage should be reassessed in the light of those new uses.”

The Directive is representative of the findings of a review that was carried out between 2013 and 2016 by the EU Commission of the existing copyright rules with the objective to ‘ensure that copyright and copyright-related practices stay fit for purpose in the new digital context’. The review process identified problems with the implementation of certain exceptions and their lack of cross-border effect.

These failings related specifically to current educational use exceptions for use of copyright protected material and use in relation to text and data mining. Based on this review of current copyright law the Directive has introduced new exceptions applicable to the education sector.

Teaching and Text/Data Mining Exceptions

The Directive looks to introduce exceptions in relation to text and data mining (Article 3), together with use of works and other subject matter in digital and cross-border teaching activities (Article 4). These are highly relevant to the education sector.

Article 3 requires each Member State to provide for an exception to the author’s rights in relation to reproductions and extractions made by research organisations in order to carry out text and data mining for the purposes of scientific research. To qualify for this exception an educational institution must fall within the definition of research organisation under Article 2. This definition being:

“research organisation means a university, including its libraries, a research institute or any other entity the primary goal of which is to carry out educational activities involving also the conduct of scientific research:

(a) on a non-for-profit basis or by reinvesting all the profits in its scientific research;

(b) pursuant to a public interest mission recognised by a Member State;

in such a way that the access to the results generated by the scientific research cannot be enjoyed on a preferential basis by an undertaking exercising a decisive influence upon such organisation.”

The research organisation must also have ‘lawful access’ to the works or subject matter and measures must be applied to ensure the security and integrity of networks and databases where such works or other subject matter are hosted. The article also imposes an obligation on Member States to encourage both rights holders and research organisations to define commonly agreed best practices concerning the application of any measures imposed to ensure the security and integrity of networks and databases.

Universities must be careful where funded by private industry clients to ensure that the main goal of research carried out is primarily for education and scientific research purposes and that such research is available to all. It appears that this exception will not apply where a private investor backs scientific research for commercial purposes and therefore the results of such research are confidential and accessible to that private investor only.

Article 4 requires member states to provide for “either an exception or limitation to author’s reproduction rights in order to allow for the digital use of works and other subject matter for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use:

(a) takes place on the premises of an educational establishment or through a secure electronic network accessible only by the educational establishments pupils or students and teaching staff; and

(b) is accompanied by the indication of the source, including the authors name, unless it turns out to be impossible. 

Member States have more scope to control the application of Article 4 as they are not required to impose a general exception but may limit its effects to the extent that the Member State feels that adequate licenses authorising such acts are easily available in the market.

Where Member States do not wish to enforce a general exception they are under an obligation to take necessary measures to ensure appropriate availability and visibility of any such licenses.

The Article states that ‘use’ of a work or other subject matter will be deemed to take place solely in the Member State where the educational establishment is established.

Note that the Article also provides Member States with the option to provide for fair compensation for the harm incurred by the rights holders due to such use.

Article 11 – aka “the link tax”

Article 11 provides for a new ‘press publishers right’. As press publications usually fall within the scope of current copyright protection it is unlikely that this new right will cause any real practical impact. However, the crux of the press publishers right is actually contained in Article 12. Under Article 12 the press publishers right gives publishers sufficient legal basis for fair remuneration for uses of the work made under an exception or limitation.

It is not clear how this will actually work in practice. How much of an article has to be shared before a platform has to pay the publisher? News aggregator sites should collectively breathe (a small) sigh of relief as Article 11 has confirmed that “the protection granted shall not apply to acts of hyperlinking” and that “the rights shall not apply in respect of uses of individual words or very short extracts of a press publication.” However, since most links are accompanied by more than a couple of words, it seems that many platforms and news aggregators will fall foul of this rule.

Article 13 – aka “the meme ban”

Article 13, originally dubbed the ‘meme ban’ (not to worry – the EU Commission have confirmed that it will not ban them, and that we can all continue to enjoy various Brexit related memes…for the time being at least!), aims to ‘provide for measures aiming at facilitating the licensing and clearance of the rights process’ in order to increase access to copyright protected content.

Article 13 states that where an online content sharing service provider gives access to the public to copyright protected works it is performing an act of communication. Therefore online content sharing providers are required to enter into an agreement with authors of protected works. Where the online content sharing service provider does not enter into an agreement it will be liable for any copyright infringement in relation to the author’s work or other subject matter, unless it:

  •  has made best efforts to obtain authorisation (i.e. via a licence agreement);
  • made best efforts to ensure the unavailability of the works or other subject matter which has been identified to it by the rights holder (providing the relevant and necessary information); and
  • acts expeditiously on receiving a sufficiently substantiated notice by the rights holder, to remove from its website or disable access to copyright protected works and other subject matter and to make best efforts to prevent future uploads.

Much of the lobbying against Article 13 was with regard to the “use of effective content recognition technologies” specified by the EU Commission in its proposal for the Directive. The lobbying seems to have been somewhat effective as the agreed text of Article 13 states that “the application of the provisions in this article shall not lead to any general monitoring obligation”. However, online content sharing providers will be ‘on the hook’ for failure to remove infringing content and the EU Commission has also made provision for dispute resolution procedures to be introduced in relation to such claims.

Comment

As well as introducing exceptions related to the education sector, the Directive therefore looks to strengthen the rights of authors in relation to use of their works online. The most controversial parts of the Directive relate to a new press publishers right and strengthened rights of authors dealing with online content sharing service providers.

Hopefully as a result of the modernised framework of exceptions and limitations, the Directive will achieve its proposed aim of allowing researchers to benefit from a clearer legal space to use innovative text and data mining research tools, and that teachers and students will be able to take full advantage of digital technologies at all levels of education. Additionally through Articles 11 and 13, it is envisaged that these will facilitate the use of cross-border digital content by increasing the rights of authors in relation to protected content and strengthening the ability to claim fair remuneration for such works.

 

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