Presentation by prof. Raquel Xalabarder about Copyright Limitations and Exceptions for Education in the EU at Barcelona Workshop on 20th September 2012

1. Workshop on Training on Open Content Licensing in Europe
Copyright Limitations and
Exceptions for Education in
the EU
Prof. Raquel Xalabarder
Universitat Oberta de Catalunya – UOC
Barcelona, 20 Sept. 2012

2. A fragmented and insufficient approach
to ensure education :
 Use of copyrighted works for purposes of
education has always been allowed by
Copyright laws and international
instruments
 BC (and even EUCD) are user/teaching friendly
 Yet, exempted educational uses remain a
matter for domestic laws … and domestic
laws are not so generous
 Fragmented (non-coherent)
 Insufficient (online uses are discriminated)

3. Insufficient :
In analog world:
• Teaching is “self-contained”
• Minimal economic significance
• Quotations / private use-study limitations
In digital world:
• Broad interpretation of exclusive rights  no-room
for “de minimis” uses
• Specific language, narrow in scope (upload /
transmission / download)
• Further restricted by DRM + licensing terms

4. Fragmented:
• Quotations (art.5.3d EUCD / art.10.1 BC)
 Some teaching uses are already exempted as quotations (and should
remain so)
• Exceptions for teaching purposes (art.5.3a EUCD /
art.10.2 BC)
• Private use/study/copying (art.5.2b EUCD / art.9.2
BC)
 May exmempt copies /downloads by students
• Library exceptions (art.5.2c EUCD / art.9.2 BC)
 To obtain the works that will be used for teaching purposes

5. International instruments
 Art.10.2 BC: use by way of illustration in
publications, broadcasts or …recordings for
teaching
 Art.15.1(d) RC: use solely for the purposes of
teaching // Art.15.2 RC: extend BC ones
 Art.10.1 BC: quotations (mandatory nature)
 ‘Minor reservations’ (Brussels 1948)
 Art.9.2 BC: “three-step-test”
 also in digital contexts Art.10 WCT, Art.16 WPPT

6. TEACHING PURPOSES
Berne Convention, Art.10(2):
“It shall be a matter for legislation in the countries of
the Union, and for special agreements existing or to be
concluded between them, to permit the utilization, to the
extent justified by the purpose, of literary or artistic
works by way of illustration in publications, broadcasts
or sound or visual recordings for teaching, provided
such utilization is compatible with fair practice”

7. “by way of illustration …for teaching” read in a broad sense:
• distance education (“broadcasts” since 1967) and
• teaching compilations (“publications” since 1886);
 provided the use is “compatible with fair practice”
… in any format (clear intent to cover any new formats):
• digital distance education (on-line) and
• digital teaching compilations (web-based).
left to domestic laws (non-mandatory exception).

8. International instruments
Open:
 All works and subject matter
 All acts of exploitation (including translation)
Neutral:
 Technologically neutral: also online uses
Flexible:
 Educational purposes (instruction, making of
compilations and recordings)
 To the extent justified by the purpose
 Compatible with fair practice …and three-step-test!
 Remuneration: not required, but allowed

9. EU Directive 2001/29/EC:
Article 5.3(a):
Member States may provide for exceptions or limitations
to the rights of reproduction and communication to the
public, in the case of:
“use for the sole purpose of illustration for teaching or
scientific research, as long as the source, including the
author’s name, is indicated, unless this turns out to be
impossible and to the extent justified by the non-
commercial purpose to be achieved.”

10. Art.5.3 exempts rights of reproduction + com.publ. (making
available online) - (Rec.42: “might also exempt certain uses in the
context of on-demand delivery of works”)
 Digitization ? Translation ? Distribution?
face-to-face, as well as “distance learning” (Recital 42) and “the
new electronic environment” (Explan. Memorandum)
analog and digital media and supports (technology-neutral)
might also cover digital teaching compilations (Explan. Memo)
all works covered … to the extent justified by the purpose
eligibility: “non-commercial nature of the activity” (Recital 42:
“organizational structure and means of funding… not decisive”)
”illustration for teaching” (= art.10.2 BC?)  something more
than a quotation or a private copy!
equitable remuneration not required (but art.5.5 EUCD)

11. Non-mandatory to EU Member States
… Exempted educational uses remain a matter for
domestic laws … not so generous!
 Divergence in national laws

12. National laws : multiple limitations
 Educational uses:
 Teaching (lectures, exams, debates, work in class, etc)
 Compilations for teaching / educational use
 School events
 Quotations works commented, debated, analysed…
 Private Copy/Use  students’ copies?
 Fair Use/Dealing (Common law systems)
 Library uses
 Loopholes (and overlaps) among exempted uses:
preservation, research… why not teaching purposes?
 Online libraries “discriminated”

13. National laws: Educational uses
Heterogeneous solutions:
 Purposes: education, teaching, instruction, lessons,
examinations (… multiple technological contexts)
 Exempted acts: photocopying, performance, reproduction,
distribution, broadcast, making available online (intranet),
translation, digitization?
 Works covered: all kind of works v. some works
 Benefiting institutions: public, non-profit, all levels?
 Scope: flexible (extent necessary, fair practice) or limited (as
to amount, number of copies)
 Remuneration: required, allowed, for free

14. National laws: EU / EEA
 Any use (may include online uses, translation, etc.)
 Cyprus, Czech Rep., Estonia, Latvia, Liechtenstein, Poland,
Switzerland
 Reproduction (distribution), public com., making available
online  Art.5.3a EUCD
 Belgium, France, Germany, Italy, Luxembourg, Malta, Netherlands,
Portugal, Romania, Slovakia,
 Translation: Malta, Netherlands, CH
 Reproduction (distribution), performance  limited to F2F
contexts
 Austria, Bulgaria, Greece, Hungary, Lithuania, Slovenia*, Spain
 Extended collective licensing (cover online uses)
 Finland, Denmark, Iceland, Norway, Sweden

15. National laws: EU / EEA
 Beneficiaries
 educational establishments, schools, universities, etc.
 Overlapping with library limitations? Gaps with library limitations?
 non-commercial purposes v. non-commercial institutions?

elementary, secondary, university, official degrees, ‘adult’ education?
 Nature and extent of works
 Specific restrictions (# copies, %, fragments, isolated, exclusions …)
 Lawfully disclosed works (to extent justified by purpose)
 Remuneration
 5 countries require it: Belgium, France, Germany, Switzerland, Netherlands
(statutory compulsory license)
 3 are silent: Luxembourg, Portugal, Italy
 The rest, non-remunerated (teaching uses allowed for free)
 Further requirements
 fair practice, three-step-test, name and source indicated
 limited recipients (for online uses: access control)

16. National laws : Teaching uses
EU/EEA:
Any use: 7 14
Specific acts, 12
including online: 10 10
Perf. & Reprod.: 7
8
F2F + Ext. Col. Lic.: 5
6
Non-EU: 4
Perf. & Reprod: 3 2
Only performance: 2
0
Only reproduction: 13 Any Online F2F ECL Only Only
use Perf. Repr.
EU/EEA Non-EU
Slide extracted from WIPO Study on Copyright Limitations and Exceptions for Educational Activities, by R. Xalabarder, December 2009, SCCR/19

17. National laws: UKCA
 Non-reprographic copying for instruction
 Anything done for purposes of examination
 Performance, playing, showing for instruction (not online)
 Making recordings of broadcasts and cable programs for
later educational use (failing licensing scheme)
 Reprographic copying (of ‘passages’, percentages) for
instruction (failing voluntary licensing schemes)
digitization allowed under license
 Making of teaching anthologies for use at educational
establishments (very restricted)
 All of them: provided it is fair dealing, for free
(remuneration only under licensing schemes)
 Voluntary licensing systems in place (cover online uses)

18. National laws: Netherlands
Art.16:
1. Reproduction or publication of parts of a literary, scientific or artistic work
exclusively for use as illustrations for teaching purposes, so far as justified
by the intended and noncommercial purpose will not be regarded as an
infringement of copyright, provided that:
 1o. the work from which the part is taken has been published lawfully;
 2o. the adoption is in accordance with what might reasonably be accepted under
the rules of social custom;
 3o. the provisions of Article 25 have been observed;
 4o. so far as reasonably possible the source, including the author’s name, has
been clearly indicated; and
 5o. a fair payment is made to the author or his right-holders.
2. In the case of a short work or a work as referred to in article 10, paragraph 1, sub
6°., 9°. Or 11°., the entire work may be taken over for the same purpose and
subject to the same conditions.
4. The provisions of this article shall also apply where the reproduction is in a
language other than the original.

19. National laws: Spain
 (1) It shall be lawful to include in one’s own work fragments of the works of
others, whether of written, sound or audiovisual character, and also to include
isolated works of three-dimensional, photographic, figurative or comparable art
character, provided that the works concerned have already been disclosed and
that they are included by way of quotation or for analysis, comment or
critical assessment. Such use may only be made for teaching or research
purposes and to the extent justified by the purpose of the inclusion, and the
source and the name of the author of the work shall be stated.
 (2) Professors of official education will require no authorization by the author
to perform acts of reproduction, distribution and communication to the
public of small fragments of works or of isolated works of art, or of
photographic or figurative nature, excluding textbooks and university treatises,
when such acts are done only for purposes of illustration of their educational
activities in the classrooms, to the extent justified by the non-commercial
purpose and provided that the works have been previously disclosed and that
–unless it proves impossible- the name of the author and the source are
included. The former paragraph does not include the reproduction, distribution
and communication to the public of compilations or collections of fragments of
works or of isolated works of art, or of photographic or figurative nature.

20. National laws: Cyprus
7.—(1) Copyright in a scientific, literary, musical or artistic work or a
cinematograph film or photograph shall consist in the exclusive right to
control the doing in the Republic of any of the following acts: the
reproduction in any form, sale, rental, distribution, lending, advertising,
exhibiting in public, the communication to the public, the broadcasting,
the translation, adaptation and any other arrangement, of the whole work
or a substantial part thereof:
Provided that copyright in any such work shall not include the right to
control—
(j) any use made of a work by such public libraries, non-commercial collection
and documentation centres and scientific institutions as may be prescribed,
where such use is in the public interest, no revenue is derived therefrom
and no admission fee is charged for the communication, if any, to the
public of the work thus used;
(r) Any use of works, to the extent justified by the non-commercial purpose to
be achieved

21. Austria: Art.42(6) « Schools and Universities shall be allowed to make and distribute
copies of works for purposes of school use and/or teaching in the context of their
academic activity, in the quantities required for a specific class or academic activity
(reproduction for teaching purposes), on the supports provided for under paragraph 1
[paper and any similar supports] only for non-commercial ends. The authorization to
reproduce works for use at school shall not apply to works which by their nature and
designation, are intended for school use or teaching.»
U.K.: Sec.32 « (1) Copyright in a literary, dramatic, musical or artistic work is not infringed
by its being copied in the course of instruction or of preparation for instruction,
provided the copying (a) is done by a person giving or receiving the instruction, (b) is
not by means of a reprographic process, and (c) is accompanied by sufficient
acknowledgement, and provided that the instruction is for a non-commercial purpose.»
Greece: Art.21 Reproduction for Teaching Purposes.- « It shall be permissible, without the
consent of the author and without payment, to reproduce articles lawfully published in a
newspaper or periodical, short extracts of a work or parts of a short work or a lawfully
published work of fine art work exclusively for teaching or examination purposes at an
educational establishment, in such measure as is compatible with the aforementioned
purpose, provided that the reproduction is effected in accordance with fair practice and
does not conflict with the normal exploitation. The reproduction must be accompanied
by an indication of the source and of the names of the author and the publisher, provided
that the said names appear on the source.»

22. Italy: Art.70(1) « The abridgement, quotation or reproduction of fragments or parts of a
work and their communication to the public shall be free if they are made for the
purpose of criticism or discussion, within the limits justified by such purposes and
provided that they do not constitute competition with the economic exploitation of the work;
if they are made for purposes of teaching or scientific research, the use must –in
addition to the above- be made for illustration and non-commercial ends.»
Netherlands: Art. 16 «1.- The following shall not be deemed an infringement of copyright
in a literary, scientifc or artistic works : (a) the taking over of parts of works in
publications or sound or visual recordings made for use as illustrations for teaching
purposes, provided : 1º the work from which was taken over has been lawfully
communicated to the public ; 2º the taking over is in conformity with that which may be
reasonably accepted in accordance with social custom ; 3º the provisions of art.25 have
been taken into account ; 4º the source is clearly indicated, together with the indication
of the author if it appears in the source ; and 5º an equitable remuneration be paid to the
author or his successors in title.»
Luxembourg: Art. 10 « Once the work, other than a database, has been lawfully made
available to the public, the author cannot prohibit: …(2) the reproduction and
communication to the public of works for illustration of teaching or for scientific
research and to the extent justified by the non-commercial ends to achieve and
provided that such use is according to good practices and that –unless it is
impossible- the source included the author’s name is duly indicated.»

23. Germany: Art. 52.a « (1) It is allowed to communicate to the public small parts of a
work, short works or isolated articles of newspapers or periodicals, 1. for purposes of
illustration for teaching in schools and universities only for the participants in a
course ; or 2. only for a limited circle of persons for their scientific research; to the extent
that the communication to the public is necessary for these purposes and is justified for
non-commercial purposes. (2) The communication to the public of a work designed for
teaching purposes can only be made with the authorization of the author. The
communication to the public of a filmwork can only be made with the authorization of the
author in the two years following the start of the exploitation of the film. (3) It is also allowed
under paragraph 1, to make reproductions related to the communication to the public
to the extent necessary for that purpose. (4) The communication to the public under
paragraphs 1 and 2, as well as reproductions made in relation with it, grant a right to an
equitable remuneration in favor of the author. These rights can only be managed by
means of a collecting society.”

24. QUOTATIONS
EU Directive Art.5.3(d): Member States may provide for
exceptions or limitations to the rights of reproduction and
communication to the public, in the case of:
“quotations for purposes such as criticism or review, provided
that they relate to a work or other subject matter which has
already been lawfully made available to the public, that, unless
this turns our to be impossible, the source, including the author’s
name, is indicated, and that their use is in accordance with fair
practice, and to the extent required by the specific purpose.”
Quotation limitations in national laws are narrower :
•Restricted to specific purposes (teaching not included)
•Restricted to only some kind of works, to short fragments, etc

25. LIBRARIES
EU Directive Art.5.2(c): Member States may provide for
exceptions or limitations to the rights of reproduction, in the case
of:
“in respect of specific acts of reproduction made by publicly
accessible libraries, educational establishments or museums, or
by archives, which are not for direct or indirect economic or
commercial advantage.”
-only covers reproduction! …no “delivery”? (Rec.40: “no online delivery”) /
art.53.a) German Law
-no compensation requirement (albeit art.5.5 EUCD)
Library limitations in national laws are even narrower:
-specific purposes (preservation, research, study, etc)
-Educational establishments are not included  gaps!

26. Teaching compilations:
• On-line asynchronous teaching results in the making of
teaching compilations.
• Covered by Art.10(2) BC and Art.5.3(a) EU Directive.
• Not by domestic laws:
- Allowed, remunerated, subject to regulations and
compulsory licensing (Italy, U.K)
- Allowed, free after the Author’s death (Greece)
- Author’s consent while alive (Belgium)
- Silence (France, Spain)
 not enough for DDE: only cover reproduction, only
fragments, etc.

27. National laws: Teaching Compilations
Common Law Countries
 3 non-remunerated: Canada, UK, Ireland 14
 Not exempted in 2 countries: USA, Israel 12
EU/EEA: 10
 8 (10) non-remunerated: Bulgaria, Czechia, 8
Cyprus, Greece, Hungary, Latvia, Lithuania,
Romania (UK, Ireland) 6
 9 remunerated: Austria, Estonia, Germany, 4
Italy, Nether., Poland, Portugal, Slovenia, 2
Belgium (upon author’s death) 0
 5 with extended collective license: Denmark, Non- Rem. ECL Not
Finland, Norway, Sweden, Iceland Rem. exempted
 Not exempted in 7 countries: France, Liecht.,
Common Law EU/EEA Others
Lux., Malta, Slovakia, Spain, Switzerland
OTHERS (Non-EU/EEA):
 13 non-remunerated: Albania (incl. translation), Andorra (only reprod.), Armenia,
Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkey?,
Ukraine, Uzbekistan,
 3 remunerated: Bosnia & Herz., Macedonia, Croatia (only reprod.)
 Not exempted in 3 countries: Moldova, Montenegro, Serbia

28. Private use/copying:
• Art.5.2 EU Directive: “reproduction made by a natural
person for private use”
• Domestic laws: “use” vs. “reproduction” / “private use”
vs. “research and study”
 Likely to cover downloads made by students, of works
used for teaching.

29. National laws: School Events
Common Law Countries
 All 5 exempted: USA, Canada, UK, 20
Ireland, Israel
EU/EEA: 15
 17 exempted: Belgium, Bulgaria,
10
Czechia, Estonia, Germany,
Greece, Hungary, Latvia, Poland, 5
Romania, Slovakia, Slovenia.
Denmark, Iceland, Finland, Norway, 0
Sweden. Exempted Non-exempted
Non EU/EEA: Common Law EU/EEA Non-EU/EEA
 4 exempted: Armenia, Bosnia &
Herz., Croatia, Macedonia

30. Voluntary Licensing
For all non-exempted uses  voluntary licensing
 Collective licensing:
 voluntary (USA), “stirred” by legislator (UK), extended
(Nordic countries)
 Practical difficulties:
 CMO’s insufficient mandate of rights (ultimately
voluntary)
 Difficult to enforce (users not willing to accept them)
 Individual licensing - Practical difficulties:
 identifying & locating owner
 timely responses
 Unreasonable terms & prices (fear of downstream uses,
insensitive to needs of education)

31. Voluntary Licensing
 Unbalanced interests?
 Denial of license (right to prohibit use of a work for teaching
purposes)
 Should (to what extent) authors’ exclusive rights prevail
over education?
 DRMs and licensing terms further restricting educational
uses?
 We must be vigilant on how practices evolve and ensure
teaching exceptions remain effective
 Voluntary licensing schemes (and DRMs) are insufficient
(in most countries) and can’t be trusted to find the right
“balance” between interests at stake

32. Conclusions
 Fragmented, insufficient, non-uniform solutions
 Online teaching uses discriminated (not all national
legislators are sensitive to needs of online education)
 E&L should be technology-neutral (under different
conditions)
 Lack of an international uniform rules aggravated by
the “territoriality” of copyright: de facto impediment
for the development of digital distance education
within a lawful copyright framework.
 Education is a strong public interest  Exceptions
and limitations should be a matter of strict public
policy (addressed by the law): Mandatory limitations!?