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The Croatian proposal to implement the new education exception: it could be better
In the last months, a few governments shared their proposals to adapt their national laws to the requirements of the Copyright in the Digital Single Market Directive, including to Article 5 of the Directive, which sets new minimum standards for the digital and cross-border use of copyright materials in education.
Similarly to what we did with the Dutch, the German and the Hungarian proposals, we will keep tracking how these countries are proposing to implement this mandatory exception to copyright for educational purposes. Today, we provide an overview of the Croatian proposal by Timotej Kotnik Jesih and Maja Bogataj Jančič.
What changes are introduced to the current copyright framework for education in Croatia?The current Croatian Copyright Act (Zakon o autorskim pravu i sorodnim pravima, hereinafter “ZAPSP”) does not include an educational exception for digital uses. It contains only an exception allowing for public and stage performances of protected works in direct teaching or at the teaching-related events (see current Article 88 ZASP), which does not apply to digital and online education since it does not cover the acts of reproduction and communication of works to the public.
The First Draft bill for the implementation of the DSM Directive, published on 17 April 2020, proposed to change the legal framework for education in Croatia by amending the existing public performance exception (see first draft Article 189), by introducing a new exception for the creation and sharing of teaching collections (see first draft Article 188), and by introducing a new exception for digital and cross-border teaching activities as mandated by Article 5 of the CDSM Directive (see first draft Article 190).
The Croatian government opened public consultations on the First Draft bill, which also included a virtual public presentation of the Draft bill on 15 May 2020, and was eventually closed on 17 May 2020. While the report on comments of the First Draft bill was scheduled for the end of May, it was pushed forward due to the sheer volume of feedback received. On 7 October 2020, the Croatian State Intellectual Property Office finally published the Report on public consultation on the First Draft bill, including all 727 comments received by the interested stakeholders.
On 16 November 2020, a Second Draft bill was tabled in the parliamentary committee, and on 19 November 2020 it was accepted. The provisions regarding a new exception for the creation and sharing of teaching collections (see second draft Article 192), and a new exception for digital and cross-border teaching activities (see second draft Article 194) remained unchanged from the First Draft bill (Articles 188 and 190 of the First Draft bill). The Second Draft bill is in its first reading since 11 February 2021, and any amendments cannot be proposed until it is tabled for its second reading.
What is the scope of the proposed exception for digital and cross-border education?Article 194 of the proposed version of ZAPSP regulates the free exception for digital use for educational purposes. It states that no approval from righstholders for such use of materials shall be necessary, as long as such use is of a non-commercial nature and as long as it takes place within the educational institution, in its premises or other facilities, or through a secure electronic environment. It clarifies that “illustration for teaching” includes digital uses of copyrighted works in parts or in excerpts, for the purpose of supporting, enriching or supplementing teaching and teaching activities. It requires that the uses allowed herein shall not replace the purchase of materials, primarily intended for educational markets. It also explicitly states that the exception can be relied upon in the lifelong educational activities carried out by state institutions, public institutions and any other institutions authorised to provide such activities.
As to the rights covered, the exception follows the minimum standard imposed by the Directive and only applies to the rights of reproduction and communication to the public, including making available to the public.
With regards to the beneficiaries, the exception covers not only activities that take place under the responsibility of an educational institution, in its premises or other facilities, or through a secure electronic environment, as mandated by the Directive, but also – in the case of lifelong educational activities – those carried out by state institutions, public institutions and any other institutions authorised to provide such activities.
Contrary to what is prescribed by the Directive, which covers uses to the extent required by the purpose to be achieved, the proposed Croatian exception limits the use to parts or excerpts of the materials. The proposed Article 194 ZAPSP further states that the uses allowed therein shall not replace the purchase of materials primarily intended for educational markets. This wording is inspired by recital 21 of the Directive, which states that “In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market.”
Finally, the proposed article states that the educational exception cannot be overridden by contractual provisions, and includes a cross-border provision, according to which uses covered by the exception are deemed to take place in the Member State where the educational establishment is located.
What could be improved?While the ZAPSP Draft bill represents a positive approach towards user rights protection and proposes the implementation of a broad copyright exception, there are some aspects on which it could be improved.
First of all, the exception should not prevent the use of works in their entirety. Although, as a rule, an educational exception only allows the use of parts of works, for certain materials (e.g. an image or a poem) the work must be used in its entirety for its meaning to be perceived. The Croatian legislator should follow the wording of the Directive, which states that the materials can be used to the extent necessary to the activities permitted under the exception.
Paragraph 1 of Article 190 ZAPSP Draft bill defines the secure electronic environment as one »which can be accessed only by pupils or students and teaching staff of that educational institution, provided that the source and name of the author or other right holder must be indicated, unless this proves impossible.«. The term »secure electronic environment« should be explicitly construed so as to include emails, messaging services, group chats or any other electronic communication networks and services used for teaching as well.
In addition, Paragraph 1 of Article 194 ZAPSP Draft bill relates to the acts of reproduction and communication to the public, including making available to the public, but it does not cover the act of distribution. While this is strictly consistent with the wording of Article 5 DSM Directive, national legislators have the option to go beyond what is expressly written in the DSM Directive. In this sense, the ZAPSP Draft bill could have included the distribution of physical copies of protected content as well, taking into account that analogue uses might be needed to complement digital uses or even make them possible and might be therefore crucial for fully achieving the purpose of the provision. It would also be important to extend the scope of the exception to a right that is not harmonized at the EU level, but that is essential in an education setting, which is the right to make translations and other adaptations of copyrighted materials.
The exception for digital learning activities in Article 194 ZAPSP Draft bill should also cover a broader spectrum of educational activities: joint educational activities provided by multiple education providers, as well as educational activities provided by informal education providers. The exception should also cover uses that take place on informal learning platforms, as there is no reason to differentiate these activities from formal ones.
Finally, the exception in Article 194 ZAPSP Draft bill should stipulate that it applies also to individuals that support or complement the teachers’ activities (e.g. social workers, professionals that provide special needs support, professionals that provide extracurricular activities and support, and parents). Inclusion of such individuals in educational processes is increasingly ubiquitous, which is why any legislation looking to provide useful and relevant copyright exceptions for education should include such situations as well.
ConclusionThe Croatian Draft bill and, specifically, its provision for the implementation of Article 5 of the DSM Directive into their legal framework, although it represents a step in the right direction, still has certain room for improvement and would benefit from clearer language in certain provisions and from broadening its scope. It is certainly commendable that its provisions provide for non-remunerated copyright exceptions for educational purposes, and as such could very well prove to be a reference point for other Central European countries which have not yet produced their own draft bills.
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Internet Archive Joins Boston Library Consortium
Cross-posted from the Boston Library Consortium web site.
The Boston Library Consortium (BLC) has welcomed the Internet Archive as its newest affiliate member – joining 19 other libraries in the BLC’s network working on innovative solutions that enrich the creation, dissemination and preservation of knowledge.
The Internet Archive, the non-profit library which celebrates its 25th anniversary this year, has large physical, born-digital and digitized collections serving a global user base. The Internet Archive’s history with the BLC goes back to the formation of the Open Content Alliance, through which the member libraries committed $845,000 to begin digitizing out-of-copyright books from their collections in 2007.
As part of the affiliate membership, the Internet Archive will participate in many of the BLC’s programs, including the consortium’s membership communities and professional development initiatives. The BLC will also pilot an expansion of its resource sharing program, allowing faculty, students, and scholars across the membership to tap into the Internet Archive’s vast digital collection through inter-library lending of non-returnables.
“Resource sharing is core to the mission and purpose of the Boston Library Consortium,” said Anne Langley, president of the BLC and dean of the UConn Library. “We are enthusiastic about leveraging our shared expertise to mobilize the digital collections that the Internet Archive stewards.”
For Brewster Kahle, founder and digital librarian of the Internet Archive, this membership builds on a longstanding partnership with the BLC. “We love the BLC and its libraries,” said Kahle. “We’ve been working with the BLC and its member libraries as we have digitized our collections for more than ten years. Being welcomed into the consortium will enable further and closer collaboration between this forward-looking collective of libraries.”
Charlie Barlow, executive director of the BLC, who worked to bring the Internet Archive into the consortium, said the BLC recognizes the value of extending its reach. “The BLC is thinking about new mechanisms upon which we can share knowledge,” said Barlow. “The events of the past year only reinforced our belief that the more we can draw on digital resources, the more effectively we can serve our membership and the scholarly community.”
About the Boston Library Consortium
Founded in 1970, the BLC is an academic library consortium serving public and private universities, liberal arts colleges, state and special research libraries in New England. The BLC members collaborate to deliver innovative and cost-effective sharing of print and digital content, professional development initiatives, and projects across a wide range of library practice areas.
About the Internet Archive
The Internet Archive is one of the largest libraries in the world and home of the Wayback Machine, a repository of 475 billion web pages. Founded in 1996 by Internet Hall of Fame member Brewster Kahle, the Internet Archive now serves more than 1.5 million patrons each day, providing access to 70+ petabytes of data—books, web pages, music, television and software—and working with more than 800 library and university partners to create a digital library, accessible to all.
The post Internet Archive Joins Boston Library Consortium appeared first on Internet Archive Blogs.
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Open letter on Article 17: Is the Commission about to abandon its commitment to protect fundamental rights?
Civil society groups have placed a lot of hope in the European Commission to limit the dangers to fundamental rights caused by upload filters through the Commission’s Article 17 guidance, which is supposed to help member states implement Article 17 of the DSM directive in a fundamental rights-preserving manner. But with less than two months to go before the implementation deadline, the guidance is still nowhere to be seen. In an open letter published today, twenty user rights organisations are therefore calling on the Commission not to undermine elements of the guidance that would protect users’ fundamental rights by limiting the use of automated upload filters to manifestly infringing content.
Late last week, the CJEU unexpectedly postponed the Advocate General opinion in the Polish case challenging the fundamental rights compliance of Article 17 of the DSM directive by almost three months. Knowing that the upcoming Commission guidance was discussed extensively at the CJEU hearing on the Polish case in November, the postponement could very well mean that the Advocate General wants to see the document before issuing an opinion.
While the Commission has been hinting at the imminent release of the guidance for a few months now, the timing indicates that the Commission precisely wanted to avoid giving the Advocate General time to study the guidance. This does not bode well for the fundamental rights safeguards the Commission is planning to present. Signals are mounting that the delays are the result of intense behind-the-scenes political wrangling aimed at undermining the user rights safeguards to be included in the guidance.
That’s why, together with 20 other users’ rights organisations who have participated in the EU stakeholder dialogue on the implementation of Article 17, we have sent an open letter to the Commission, raising our concerns about the handling of the final phase of this process. The letter urges the Commission “not to weaken its guidance through open ended exception clauses that seem to benefit particular rightsholders at the expense of users’ fundamental rights” and stresses that “strong ex-ante fundamental rights protections are necessary to meet the obligation of result to protect users’ fundamental rights.”
The letter further highlights the fact that, by issuing guidance that substantially diverges from the position taken before the CJEU, the Commission would indicate that it is ultimately lacking the political will to ensure that the required fundamental rights protections will be included in national implementations of the directive.
How did we get here?The Commission has been working on drafting its guidance since the conclusion of the stakeholder dialogue meetings in February of last year. In July the Commission published a first draft of its guidance as part of a targeted consultation. In its draft, the Commission made it clear that, in order to protect fundamental rights of users and in order to comply with the provisions of the directive, national implementations of Article 17 must contain ex-ante user rights safeguards, that limit the automated blocking of uploads to situations where an upload is clearly (“manifestly”) infringing.
The draft guidance showed that the Commission was willing to live up to its role as the steward of the complicated legislative compromise embodied in Article 17. While the approach received massive criticism from rightsholders and some Member States, in November the Commission doubled down on this approach in its intervention in the Polish CJEU case challenging the fundamental rights compliance of Article 17. Together with the Council and the Parliament the Commission argued that Article 17 respects fundamental rights because Member States must implement it in a way that ensures that uploads that are not manifestly infringing cannot be automatically blocked. The Commission wanted the CJEU to believe that the upcoming guidance would be based on this principle.
Almost half a year later the guidance is still nowhere to be seen. Yesterday Commissioner Thierry Breton informed members of the CULT committee of the European Parliament that the guidance would be presented “within the next weeks”, but refused to answer a direct question from MEP Marcel Kolaja (from 14:27:55 onwards) if the guidance would “defend the legal interpretation that the Commission held before the CJEU, according to which only manifestly infringing content may be blocked?”.
This refusal to answer this question must be placed in the context of the larger developments. Over the past few months the final version of the guidance has been the object of intense, behind the scenes, political wrangling between different parts of the Commission. In February, MEPs critical of the principles expressed in the draft guidance held a closed door meeting with Commission representatives and select Member States opposing the Commission’s position. In the following week a high ranking member of the Cabinet of Executive Vice President Magrete Vestager – who oversees this file – received a delegation of rightholder organisations who have been rallying against the principles underpinning the Commission’s draft guidance to discuss the Copyright Directive.
Calling the Commission’s bluffIn light of these efforts to undermine key elements of the guidance, the mounting delays of the publication give reason to believe that the final guidance will significantly water down the safeguards for users’ fundamental rights in order to please particularly powerful rightsholder groups. If this were to be the case it would significantly undermine the credibility of the Commission, which throughout all of last year had run the stakeholder dialogue in a transparent manner in line with its role as the steward of the legislative compromise embodied in Article 17.
More importantly, such a weakened version of the guidance would also undermine the Commission’s credibility with the CJEU, who ultimately needs to decide on the fundamental rights compliance of Article 17. Having argued that the upcoming guidance would signal a strong commitment to protecting users’ fundamental rights, any weakening of this position by the Commission would give the Court additional reasons to annul Article 17 (as requested by the Republic of Poland).
If one assumes that it was the Commission’s intention to issue its guidance only after the opinion of the Advocate General, then the Advocate General has called the Commission’s bluff: By delaying his opinion to July the Advocate General is forcing the Commission to show its hand before issuing his opinion. In this situation the Commission would do well to stick to the principles underpinning its draft guidance and create legal clarity as soon as possible.