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

The legal uncertainty faced by educational establishments and teachers in certain MS for digital uses is expected to persist under the baseline option. Only reforms at national level or developments in the licensing market could contribute to reduce it. A certain number of MS (e.g. ES, UK) have recently amended their legislation to clarify that the teaching exception applies to content used in secure electronic environments.

Other MS may follow, however it is unlikely that all MS would engage in similar reforms and in any event such reforms would not result in an exception applicable across borders. In MS where specific educational licensing schemes are in place, CMOs may propose to review the scope of the licences to better respond to the needs of educational establishments, for example as regards digital and online uses. However they may not always be able to licence cross-border uses (if they don’t have the rightholders’ mandate for all EU territories).

Furthermore, solutions based on collective licensing may not be fit for all types of works (e.g. AV works). In the MS where the uncertainty would persist, teachers would be deterred from using protected content in digital teaching activities, beyond what is allowed for under existing licences. They may instead increasingly use OERs available under open licences, which however may not fully cover their needs, in terms of quality and variety of educational materials.

Under this option, cross-border uses of protected content would remain subject to legal uncertainty. This aspect would constitute a significant obstacle for higher education institutions proposing distance learning programmes followed by students located in other MS. Enrolled students may be disadvantaged by having a limited access to teaching materials.

The baseline option would not have any direct impacts on costs. Where digital and cross-border uses are not allowed under the teaching exception or under specific licensing schemes, educational establishments would continue facing transaction costs to obtain the necessary authorisations.

Under the baseline option, the ability of rightholders to generate revenues from educational uses would continue to vary from a MS to another, depending on the scope of the teaching exception, the mechanisms foreseen for the compensation of rightholders for uses under the exception, and the licences covering additional uses.

The legal uncertainty on the use of protected content could contribute to slow down the development of digital and cross-border education and indirectly the acquisition of digital skills, which are essential in the information society; however many other factors may more strongly influence such development (e.g. availability of broadband connections in schools, IT equipment, teachers’ digital skills, etc.).

The access to a wide range of cultural materials to illustrate or complement teaching is an important element to promote cultural diversity. The baseline option may, to a minor extent, negatively affect cultural diversity as it could limit the ability of teachers to use such illustrative content in digital teaching practices.

This option would not have any impact on copyright as a property right (Article 17 of the Charter), as it would not expand the scope of the existing teaching exception. It may have an impact on the right to education, as enshrined in Article 14 of the Charter, only to the extent that the legal uncertainty faced by educational establishments would constitute an obstacle to the further development of distance learning. Distance learning plays a role in facilitating access to education, for example for people with disabilities that cannot be present on the premises of educational establishments or people pursuing further education while working.