SWD IA on EU copyright modernisation – options for use of protected content in digital and cross-border teaching activities

Baseline

No policy intervention. In MS where digital uses are not clearly allowed under the national teaching exception, this option would consist in relying on market developments (e.g. further development of collective licensing schemes, publishers’ digital offers) to offer solutions that allow teachers and students to use protected content in teaching activities supported by digital tools or taking place online. At the same time, certain MS could decide to amend their national exceptions – based on the optional teaching exception in Article 5(3)a of the InfoSoc Directive, which allows digital uses – to clarify the extent to which certain digital uses are covered in their MS.

Option 1 – Guidance to MS and stakeholders’ dialogue on raising awareness in the education community on the use of protected works for teaching purposes

Under this option, the Commission would issue guidance to MS as to the extent to which protected content can be used in the digital environment under the existing teaching exception, in line with the three-step test. Such guidance would encourage MS to make sure, when required, that their national exception applies to digital resources used for teaching purposes and to online activities undertaken by educational establishments or teachers.

In addition, the Commission would encourage discussions between rightholders and educational establishments to explore ways to raise awareness in the education community on the uses allowed under the exception or under specific licences.

Option 2 – Mandatory exception with a cross-border effect covering digital uses in the context of illustration for teaching

This option would make mandatory for MS the implementation of an exception to the rights of reproduction and making available to the public, with the following elements:

  • Beneficiaries: educational establishments.
  • Subject-matter covered: all types of works or other protected subject-matter, including resources produced specifically for education (e.g. textbooks, academic books, educational documentaries).
  • Permitted uses: teachers and students affiliated to educational establishments would be allowed to use protected works for non-commercial purpose to illustrate teaching through digital means in the classroom (e.g. whiteboards) or online under the educational establishment’s secure electronic network (e.g. virtual learning environment, intranet). Digital uses which would result in making protected content available on the open internet (e.g. uses beyond quotation of protected content in Open Educational Resources – OERs or in Massive Open Online Courses – MOOCs) would not be covered under this option.
  • Relationship with the licensing market: the uses allowed under the exception would not be subject to the availability of licences.
  • Compensation: MS would remain free to determine whether they require compensation for the uses under the exception. In MS opting for compensation, it would be applied to the uses undertaken by educational institutions (and their affiliated teachers and students) established in that MS, irrespective of where such uses actually would take place.
  • Interaction with the current exception: outside the scope of this mandatory exception, the existing (optional) teaching and research exception under Article 5(3)a of the InfoSoc Directive would continue to apply. For teaching, this would be relevant mainly for analogue uses.
  • Cross-border uses: The cross-border effect of the exception would be ensured through a legal fiction which would provide that the uses made under the conditions of the exception are deemed to take place only in the MS where the educational body is established. Such provision would make sure that the content made available under the exception by beneficiary institutions can be lawfully accessible to affiliated teachers and students located in other MS.

The option of introducing a mandatory exception covering all types of digital educational uses carried out for non-commercial purpose (including in OERs and MOOCs) has been discarded, as it would make it difficult to control the dissemination of protected content online (users would be allowed to copy protected content and make it widely available online through education blogs or websites).

Option 3 – Mandatory exception with a cross-border effect covering digital uses in the context of illustration for teaching, with the option for MS to make it (partially or totally) subject to the availability of licences

This option would be similar to Option 2 but would leave MS the possibility to decide that the exception would come into play only if licences covering the same uses are not available in the market.

In order to reduce the administrative burden for educational establishments related to the need to check the availability of licences, MS opting for this approach would have to take measures to ensure that licences covering relevant uses are available, sufficiently visible and easy to use for educational establishments. They would be required to notify to the Commission the measures taken in this respect.

Cross-border uses: the legal mechanism described under Option 2 would also apply to equivalent licences (the uses carried out under these licences would be deemed to occur only in the MS where the educational body is established).