WHY IS ARTICLE 5 IMPORTANT?
Article 5 strongly impacts authors and publishers because text and images, and in particular, material specifically written for the educational market, are the resources most frequently used by teachers and pupils to illustrate teaching. With the publishing sector accounting for so many jobs, a balanced teaching exception is essential.
School books are widely copied: 500 million copies of pages are made in Denmark each year
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99.4% of European companies active in the book publishing sector are small and medium structures
Educational plus academic publishing represents almost 40 % of the European book publishing sector*
Royalties for secondary uses are an important income for authors. A UK study shows that 25% of authors receive more than 60% of their income from secondary uses
More than half a million people work in the book value chain in Europe**
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Educational publishers are investing heavily in digital resources (10 million euros per year in France, for example) to create interactive digital pedagogical resources
Article 5 leaves significant flexibility for EU Member States to decide how to transpose the rules into national legislation. The choices that Member States make will have a significant impact on authors and publishers whose works are copied and will be a deciding factor in many cases as to whether an author is able to continue make a living from writing or a publisher to invest in new publications.
* FEP, European Book Publishing Statistics 2018 (see here)
** FEP, European Book Publishing Statistics 2018 (see here)
What is the issue?
Article 5 of the DSM Directive provides a mandatory exception: “to allow for the digital use of works and other subject matter for the sole purpose of illustration for teaching…” Although the Directive provides guidance that this means “to support, enrich or complement the teaching”, and “implies the use only of parts or extracts of works” there is a risk that the exception will be interpreted broadly. Furthermore, the flexibility given to Member States leaves them the choice to decide if they will allow the prevalence of licensing and remuneration for authors and publishers, or not.
Why does it matter?
Prior to the DSM Directive, a range of solutions were available in most Member States, including licensing or remuneration schemes permitting teachers to use the resources they need, guaranteeing authors and publishers fair payment for uses of their works. This is important as written works are the most copied resources in education, with hundreds of millions of pages copied each year in a single country. Less revenues mean fewer works produced by authors, less money for publishers to invest in new content, fewer jobs and less diverse, reliable, quality content for students.
Where are we now?
EU Member States have until 7 June 2021 to transpose Article 5 into national law. National governments are at different stages of the transposition process, with some consulting with national stakeholders. Key decisions that they must take include whether educational licensing systems will be preserved or enabled under this provision, and whether local authors and publishers will be remunerated for uses of their works under the exception when it is applied.
What do we suggest?
The Article 5 exception should have a clearly defined scope, limited to extracts of works which are impacted, and apply only where no licensing agreements are available. Where the exception applies, there must be mandatory fair compensation for all uses under the exception. This is essential for the sustainability of the sector, as secondary rights revenues represent a significant component of the income of many authors and are a necessity for many small and medium publishers. This approach is also important for achieving good educational outcomes.
Hindering the whole creative ecosystem will result in undermining the whole educational system, impoverishing the quality and diversity of content and subsequently the education of younger generations.
JOBS
FEWER
DIVERSE INNOVATIVE QUALITY CONTENT TO STUDENTS
LESS
LICENSING REVENUE TO AUTHORS AND PUBLISHERS
LESS
WORKS PRODUCED
BY AUTHORS
FEWER
EDUCATIONAL
OUTCOMES
LOWER
INVESTMENT IN NEW CONTENT BY PUBLISHERS
LOWER
CULTURAL
DIVERSITY
LESS