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

Teachers and students face legal uncertainty when using content in digitally-supported teaching practices, in particular across borders. A huge variety of content (text, images, music, video), often protected by copyright, is used in teaching activities.

While reference textbooks or academic books are usually bought by educational establishments or directly by students, other materials used to illustrate or complement teaching are generally shown in the classroom by teachers, copied or distributed to students. However, many users in the education field consider that the conditions for using protected content in digital or online teaching activities are unclear.

The notion of “illustration for teaching” can be understood as allowing a teacher to use a work to give examples, to explain or support his/her course. The condition of illustration has often been interpreted to define the extent of a work that can be used under the exception, which may vary depending on the types of works (e.g. part of a novel but an entire work if it is a poem or a photograph). The illustration for teaching exception (“the teaching exception”) has been implemented in all MS, with significant differences as to the type of works covered and the type of educational uses allowed.

The legal uncertainty faced by teachers in the digital environment may arise from the restrictive implementation of the teaching exception in certain MS, where the exception does not clearly allow digital uses (e.g. by allowing only reproduction on paper or distribution of physical copies) or where strict conditions apply to these uses (e.g. imposing a low resolution for the making available of images). The uncertainty is reinforced in a cross-border context by the diversity of the conditions established in national laws combined with the lack of cross-border effect of the exception.

Digital uses include notably scanning (digitisation from an analogue copy), digital copying (copying from an original in electronic format or from Internet downloads), inclusions in presentations or in course packs, projections to electronic whiteboards, posting to internal networks and Virtual Learning Environments, storing in internal databases. The types of digital uses allowed depend on the scope of the licensing scheme.