The EU Copyright reform: Education ministries should play a stronger role in the copyright reform process to secure public interest, by Damjan Harisch

The Ministry of Education, Science and Sport of the Republic of Slovenia (Ministry) has taken keen interest in the EU Copyright reform, which was initiated by the EU Commission through a Proposal for a Directive on Copyrights in the digital single market in September 2016, following several years of public debates and legislation assessments, which indicated the growing need for a revision of the EU Copyright legislation.

Proposed Directive, which as intensively debated for almost a year, within EU Council and lately within the EU Parliament, will force the national legislator to adequately amend national Copyright legislation in line with the provisions of the Directive. Taking into account the current state of Slovene R law, Slovenia can anticipate substantial changes of its Copyright and Related Rights Act (Zakon o avtorski in sorodnih pravicah - ZASP), touching among other on the exceptions from Copyright for educational purposes—but are these changes something that education sector that we represent needs or wishes for?

 

Currently, ZASP does not provide for a general exception for education, but rather provides for a legal license for textbooks and an exception mainly for public performances and communication to the public of works in the form of direct teaching. Both limitations are unsuited to the needs of modern educational practices, which are increasingly carried out in digital environments and outside school premises. Considering the history of amendments to ZASP in the recent years it is not completely clear online uses of works are covered by the legal license or the exception for teaching, it is however clear hat sending copyrighted content to students via email or publishing materials online is not covered by the current limitations and exceptions regime. Regarding the legislative solutions for the educational sector it is clear that ZASP is outdated and in urgent need of adapting to the needs of the digital age.

 

The Ministry promotes the respect of Copyrights. In this respect, the Ministry takes pride that after years of conflicts and standstills, it was through the efforts of Minister Maja Makovec Brenčič that an agreement between educational and CMO's on photocopying of materials in schools—which falls under the category of private use—had been negotiated. It ensured that authors received fair remuneration when their works were being reproduced or photocopied for educational activities.

 

The Ministry recognizes, however, that the education, research and science sectors need a more balanced and effective Copyright system, which would protect and award authors for their invaluable efforts. Such a system would also ensure the sharing of knowledge as well as the promotion of science and research for the benefit of all. Education, research and science deserve better, and our society which benefits from them deserves better. This is why the Ministry initially welcomed the notion of a EU-wide revision of Copyright law, which promised many necessary modern solutions for the educational sector, among other additions for text and data mining. After agreeing to the legislative processes, however, an unravelling began within the institutions of both the EU as well as the competent Slovenian Ministries and their respective bodies (namely the Ministry of Commerce, Slovene Intellectual Property Office (SIPO), and the Ministry of Culture and the Ministry of Public Administration). The Ministry has an both an internal task force as well as an appointed external Copyright expert; these officials actively engage in the Copyright reform debate on the Slovenian national and EU levels. The task force took part in the intergovernmental talks, negotiating the position of the Slovene Intellectual Property Office (SIPO) within the work groups of the EU Council. In addition, the task force took part in drafting the official position of the Government of the Republic of Slovenia, which is to be represented in the ensuing legislative processes.

 

Since the very beginning, the positions of the Ministry regarding the proposed legislation, which falls within the domain of the Ministry, has been clear, as the MIZŠ opted for mandatory broad and open exceptions to Copyright laws. It argued that an effective exception for text and data mining should be as all-encompassing as possible, listing both public and private entities who should benefit from the exception. It also insisted that the exception should cover all purposes, and not merely research—this would include the right to read and translate intellectual property, as well as the right to mine data and create new knowledge from previously existing available resources. The Ministry saw one of the biggest shortcomings of the Directive in the proposed education exception, which favoured payable licenses over free uses of content for educational purposes. The proposed exception is limited to formal educational and their secure networks, and even in this limited form, can be overwritten with licences. The Ministry argued for the mandatory free use of all materials by all educators for non-commercial purposes to give teachers a more flexible, creative space for transmitting knowledge. It was evident from the legislative process that the proposed exceptions were overshadowed by the controversial topics of both the new ancillary copyrights for press publishers, as well as the filtering of obligations for document library platforms. As these issues also touch upon the obligations of scientific and educational platforms, the Ministry voiced its opinion that these legislative propositions should be stricken in their entirety from the Directive. The Ministry feels that they impose unbalanced and unfair burdens on content providers, limit freedom of expression, endanger the open internet, and adversely affect competition—all in the interests of some powerful rights-holders. The Ministry still insists on its position, since the position is based on arguments of academics; still the rather turbulent political arena remains indifferent to the Ministry’s position, with regard to specific opinions on these two controversial topics.

 

This process shows two things: firstly, that the EU Copyright reform is extremely important for education and educational practices in the EU; and secondly, that even if the Ministries of education act and voice their opinions, they are usually not in an equal position to that of the institutions representing authors and publishers. Thus, a balance of powers is an important perspective to achieve during the legislative processes that will take place EU Parliament. It is crucial that MEPs consider and defend arguments for a Copyright system, which supports modern research practices, enables modern education and promotes sharing of knowledge. 

 


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Damjan Harisch

Damjan Harisch is secretary in the Cabinet of the Minister at the Ministry of Education, Science and Sport of Slovenia. His work includes improving the use of ICT in the fields of education and science. For several years he was employed at the Academic and Research Network of Slovenia, where he was engaged in communication with users and project management.

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