Illustration for teaching
making the DSM Directive work
What is the issue?
Article 4 of the proposed EU Directive on Copyright in the Digital Single Market provides a mandatory exception: “to allow for the digital use of works and other subject matter for the sole purpose of illustration for teaching…” The uses permitted by illustration for teaching are not clear. There is a risk that the exception will be interpreted to mean extensive rather than limited, spontaneous acts allowing teachers to use a work to give examples to explain / support their course.
Why does it matter?
As it stands, Article 4 opens the door to
extensive, unremunerated digital uses
that will negatively impact the creation
of new educational material.
Educational content is a pivotal part of the
publishing sector in Europe. Authors, visual
artists and publishers should be fairly
remunerated when their work is used.
Where are we now?
A range of solutions, including licensing schemes permitting teachers to use the resources they need, are already in place in most Member States. They ensure that authors and publishers are guaranteed fair payment for uses of their works.
What do we suggest?
The Article 4 exception should apply only where no licensing schemes are in place. Where the exception does apply, there must be mandatory fair compensation for all uses under the exception.
How does collective management provide solutions?
Clearly defined digital use
There need to be limits to the amount of a work that can be copied. “Illustration for teaching” is a notion which can be subject to differing interpretation. It is therefore essential to set objective criteria and limits regarding the use of written works.
Without clear boundaries, the draft Directive could lead to abusive practices. This new exception could be interpreted by educational establishments and teachers as a green light to make extensive copies of works.
In situations where the Article 4 exception does apply, it is vital that Member States are obliged to provide for fair compensation for the loss incurred by authors, publishers and visual artists.
This provision is essential for maintaining diversified and quality educational content and to ensure balance in the Directive.
Keep solutions that work
As exceptions should only be introduced in the event of a market failure, it is important that Article 4 provides a mechanism to preserve the well-established licensing systems between users and RROs (on behalf of authors, publishers and visual artists), which Member States have
developed. These systems provide flexible solutions for users, including across borders, in adapting to new digital uses, permitting uses that go even beyond what an exception would cover. Importantly, these systems provide the user with legal certainty.
Member States should be able to exclude textbooks from the exception in order to respect the “three step test” set out in international and EU law, which ensures that application of the law does not unreasonably prejudice a rightholder’s legitimate interest or conflict with normal exploitation of a work. Indeed, the sole market for these works is the educational sector in their national market and this constitutes an important economic weight for each Member State.