Draft proposal for a directive on copyright in DSM – exception or limitation for teaching and learning

In view of a potentially high number of access requests to and downloads of their works or other subject-matter, rightsholders should be allowed to apply measures where there is risk that the security and integrity of the system or databases where the works or other subject-matter are hosted would be jeopardised.

These measures should not exceed what is necessary to pursue the objective of ensuring the security and integrity of the system and should not undermine the effective application of the exception.

There should be no need to provide for compensation for rightsholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal.

Article 4(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public for the sole purpose of, inter alia, illustration for teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction or re-utilisation of a substantial part of its contents for the purpose of illustration for teaching.

The scope of these exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether these exceptions or limitations would apply where teaching is provided online and thereby at a distance. Finally, the existing framework does not provide for a cross-border effect. This situation may hamper the development of digitally-supported teaching activities and distance learning.

Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and across borders.

While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments in primary, secondary and higher education to the extent they pursue their educational activity for a non-commercial purpose. The organizational structure and the means of funding of an educational establishment are not the decisive factors to determine the non-commercial nature of the activity.

The exception or limitation should cover digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities. The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations.

The exception or limitation should cover both uses through digital means in the classroom and online uses through the educational establishment’s secure electronic network, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.