GUIDANCE ON IMPLEMENTATION
OF ARTICLE 5
Article 5 of the EU DSM Directive introduces a mandatory teaching exception for educational establishments. Member States do however have some flexibility in how they transpose Article 5 into their national laws, which they are obliged to do by 7 June 2021.
Art. 5 = mandatory exception for ‘illustration for teaching’
All EU Member States must review their national legislation and amend it if needed to match Art. 5 requirements
Imposed definition and scope of the exception (uses, purpose, beneficiaries and conditions for uses)
Flexibility offered to MS to include “licence override” and fair compensation where the exception applies
Recitals provide guidance on implementation e.g., illustration implies use of “extracts of works” (recital 21)
Implementation can result in multiple situations generating good or bad outcomes
The scope of the illustration for teaching exception
EU Member States’ national laws will have to provide for an exception or limitation to various rights (such as reproduction, communication and making available to the public) to allow the digital use of copyright-protected content for the sole purpose of illustration for teaching, for non-commercial purposes. The beneficiaries are pupils/students and teachers.
Purpose: the exception is for the sole purpose of illustration for teaching, meaning it only covers teaching activities. Recital 21 specifies “to enrich or complement the teaching, including learning activities”. Recital 22 also mentions use during examinations. Leisure or recreational activities are not included. Uses must also be for a non-commercial purpose. Recital 20 clarifies that use must be for a non-commercial purpose stating “the means of funding of an educational establishment should not be a decisive factor”, so that private schools recognised by the Member State can benefit from the exception.
Uses: Article 5 concerns digital uses of copyright protected content such as books, journals, images, music, audiovisual works as well as databases protected by sui generis rights. Digital uses include scanning, posting on intranet, e-mailing, storing on a hard drive or USB stick, white board, in classroom streaming, sharing via a secured platform, provided that those accessing the content are the ones intended in the Directive.
Beneficiaries: the beneficiaries are pupils/students and teachers. Administrative staff of educational establishments and the general public are not covered by this exception.
Venue or location: a condition for the use of works under the exception (under Art. 5(1)(a)) is that the use takes place under the responsibility of an educational establishment, on its premises or at other venues. It includes digital on-site uses as well as distance learning through a secure electronic environment, “accessible only by the establishment’s pupils or students and teaching staff”. So, any communication via the Internet that is accessible by others falls outside the scope of the exception. The exception extends to cross-border uses as provided for by Art. 5(3), as uses under the responsibility of the establishment are “deemed to occur solely in the Member State where the educational establishment is located”.
Indication of source: the second condition for use of works under the exception (under Art. 5(1)(b)) is that the use is accompanied by the indication of the source of the content, including the author’s name, unless it turns out to be impossible.
Two further optional provisions
Two further optional provisions are provided for by the Directive to help ensure a balanced exception to copyright – which is where Member States have flexibility:
Member States may provide that the exception or limitation under Article 5(1) does not apply or does not apply for specific uses or types of works or other subject matter, such as material primarily intended for the educational market or sheet music, to the extent that suitable licences authorising the acts foreseen in Art. 5(1) and covering the needs and specificities of educational establishments are easily available on the market. Where Member States take this approach, they must take necessary measures to ensure that those licences are available and visible in an appropriate manner for educational establishments. (Art. 5(2)).
Remuneration for authors and publishers:
Under Art. 5(4), Member States may provide for fair compensation for rightsholders for the use of their works under Art. 5(1). This importantly allows for the possibility for authors to receive remuneration for uses of their works, as well as publishers for their investment.
It is vital that national laws implementing Article 5 of the Directive ensure that authors and publishers are remunerated for their work, guaranteeing that:
digital uses are clearly defined, limiting the scope to extracts of works
where licences are available, they prevail over the exception
there is fair compensation for authors and publishers where the exception applies
Article 5 and related recitals: For further details about Article 5, how its transposition could impact authors and publishers and guidance on striking a balanced approach:
How can EU Member States ensure a balanced transposition of Article 5?
Key policy consideration #1:
Clearly define digital use by limiting the scope to extracts of works
It is important that Member States clarify that “illustration for teaching” means to support, enrich or complement the teaching using only small parts or extracts of works. It is essential to set objective criteria and limits regarding the use of written works. Without clear boundaries, the exception could be interpreted as a green light to make extensive copies of works. In fact, prior to the adoption of the DSM Directive, the majority of Member States already limited reproduction of written works to “extracts” or “short extracts”, either in law or under licences.
Purpose is Illustration
Recital 21 specifies: “the use only of parts or extracts of works”
Member States can define extracts or set proportions for different categories of works
Use of extracts or short extracts is common practice in education
Extracts are specifically relevant for written works (the most used in education)
Extracts ensure respect of the “three-step test”
Key policy consideration #2:
Allow prevalence of licences
Article 5 gives Member States the possibility not to apply the exception where there are suitable licences easily available on the market. It is important that EU Member States’ transposition of Article 5 provides a mechanism to preserve licensing systems between users and RROs (on behalf of authors and publishers), which have already been developed in many Member States. These systems provide flexible solutions for users, including across borders, in adapting to new digital uses, permitting uses that go even beyond those an exception would cover. Importantly, these systems provide the user with legal certainty. The exception should be applied only when licensing agreements are not available.
Prevalence of licensing must be specified in national laws to enable its operation for existing or future schemes
An exception is a back-up
Licences provide the same level of legal certainty and security, as only those licences which authorise at least the same uses are considered
It is possible that there may be licences for certain categories of works only, in which case the exception would cover other categories
Only licensing offers the flexibility necessary to adapt to the evolution of digital uses
There are various types of licensing available: publishers through digital offers, collective licensing (including ECL under DSM Directive, Art.12)
Ensure licence availability and publication measures
Essential to a dynamic creative industry
Key policy consideration # 3:
Fair compensation where the exception is applied
Article 5 allows Member States to provide for fair compensation where the Article 5 exception is applied. It is vital that Member States include a provision for fair compensation for the loss incurred by authors and publishers. This provision is essential for the sustainability of the sector and maintaining diversified and quality educational content.
Principle of remuneration must be enshrined in national laws
Free education doesn’t mean free use of content (licence fees are paid by Ministry of Culture or establishments, not pupils or students)
Secondary rights are necessary income for authors and publishers (especially small ones): e.g., a PwC study showed 25% of authors receive more than 60% of their income from secondary uses
Experience has shown that unremunerated exceptions have a devastating impact on authors and publishers – for example, revenues from collective licensing in education dropped by 80% between 2012 and 2017 in Canada, following a change in the law
How can collective management organisations and their members assist in the implementation process?
The objective of Art. 5 is to ensure that all Member States provide for solutions to allow digital uses of protected works in education, either through a licence or exception.
Collective management organisations in the text and image field (RROs) and their members have a wealth of experience that can be extremely beneficial to national law-makers during the implementation process, in order to help provide the most suitable solutions.
We would therefore strongly encourage national law-makers to:
Consult / engage with RROs and their author and publisher members affected by this legislation, as they will be able to explain the full implications of proposals for implementation, as well as pragmatic and effective solutions to allow digital uses of protected works in education through licences / collective management.
Take into account and preserve existing licensing schemes. Many Member States already have schemes allowing uses of protected works, either for reprography or for both reprography and digital uses. Many of them are well-established, and have been functioning for decades, others were implemented more recently. Recital 23 encourages building on those schemes. In some cases, very few or no amendments will be needed. For other Member States, it may be the opportunity to develop suitable schemes.
Advocate for solutions which address both users’ and rightsholders’ interests. As different approaches are available to Member States, it is important that the law enshrines principles not only to enable access to content but also the sustainability of the creative ecosystem.