Soile Manninen is an Information Specialist at Helsinki University Library (Finland) and a member of the working group on legal issues of The Finnish Research Library Association. The mission of the group is to track legislation concerning libraries, and keep Association members up to date about these issues.

Can you explain to us what article 5 of the EU-DSM Directive contains?

This new mandatory educational exception/limitation allows the digital use of works and other subject matter for the purpose of illustration for non-commercial teaching for cross-border uses. “Use of works” covers reproduction (scanning, printing, copying, uploading, downloading, making screenshots, etc.), communication to the public, and making available to the public. “Non-commercial teaching” refers to the nature of the teaching, not the organizational or funding background of the educational establishment.

The responsibility belongs to the educational establishment. Teaching should happen on its premises or at other venues (e.g. libraries, museums), or through a secure electronic environment that is only available for the pupils or students and teaching staff educational establishment. Cross-border teaching follows the legislation of that country where the educational organisation is established. During teaching activities, it is always required to indicate the source and give the author’s name, unless this turns out to be impossible.

Member States may provide that this exception or limitation adopted does not cover specific uses or types of works, e.g. materials that are intended for the educational market or if licenses are easily available. If Member State supports a license-based solution, it has to ensure that these licenses are available and visible in an appropriate manner, and there shouldn’t be any administrative burden to educational establishments. Member States should clarify those situations where this exception or limitation is applicable and when uses require a license. Member States can decide in favor of fair compensation for the right holders for the use of their works.

Some EU countries have already implemented allowed educational exceptions or limitations based on InfoSoc Directive (2001/29/EC) and Database Directive (96/9/EC) but the legislation still differs between Member States so there is demand for common ground to take care digital teaching cross-border activities.

Why is this provision important for libraries?

Libraries support education and are educators. In higher education or school environment the connection between library and education is easy to see because libraries take care of material acquisition and agreements with service providers, but how does this work in public libraries or special libraries? Public libraries are one of the key information resources for education at every level, most importantly for students at primary and secondary levels, and of course, every self-motivated citizen who takes part in non-formal training activities.

It should be pointed out that this exception cannot be overridden by contract but there might be some things to follow when libraries negotiate with service providers. What kind of clauses we have to consider and does this have some effects on the prices of information resources when the potential amount of users is going to bigger? If Member State decide in favor of fair compensation for right holders, how is it organized and who pays all this?

What is the best implementation libraries could hope for with this article?

Libraries and cultural heritage institutions should be mentioned as educational establishments so there will not be any confusion that libraries can carry out educational activities.

Article 5 concerns digital uses, and it does not say anything about printed material, but digitization is allowed. This exception/limitation allows using part of the work and Member States can decide on what extent works can be used. Hopefully, there won’t be specific quantitative measures because those numbers treat different types of works unequally (there is a difference are you using 20% of novel or photo).

In those countries where licensing is the option, there should be clear guidance and awareness of how materials can be used and the compensation system should be transparent for all sides. Based on Article 25 of the DSM Directive it is possible to adopt wider exceptions and maintain possibilities that InfoSoc Directive already offered. If there are exceptions/limitations that have been regulated earlier and they have proven to be functional, there isn’t any reason to make these any worse.

What is your government’s position on the issue?

Implementing the DSM Directive in the Finnish government belongs to the Ministry of Education and Culture. In May 2019 the Ministry started to organize open workshops and discussions where stakeholders worked together to understand what the DSM Directive means and which is the best way to implement the new Directive into our legislation.

Discussion around Article 5 has been quiet. Finland and other Nordic countries have active collective management organisations (CMOs) which represent authors, performers, and publishers, and extended collective licensing (ECL) is not new to us. It seems that copyright societies are now seeking new licensing solutions, and this gets support from the DSM Directive’s Article 12 “Collective licensing with an extended effect”.

Moving towards license-based solutions seems to be the worst-case scenario for many Member States where this kind of arrangement is not common but the license-based solution is reality in some countries. The Finnish National Agency for Education takes care of licensing negotiations with CMOs for primary and second-degree education and the costs of licenses are paid from the national budget. Higher education institutions have to pay these licenses from their budgets. This is how teachers, pupils, and students can use printed and digital material and copyright holders get their compensation of the use.

In Finland, education is public (in copyright language: communication to the public). Teachers make most of the education materials themselves and the basic rule is that they hold the copyright for their material. According to the recent copyright study published by the Center for Cultural Policy Research (2019), the main issue of the primary and second-degree education is the lack of digital material that can be modified, further developed and combined.

It is not always clear when uses fall under copyright law, licenses, or when there is a need to get separate permission from the copyright holder (e.g. using audiovisual material) and these issues arise daily while using digital platforms. Libraries have been actively promoting Open Educational Resources (OER), consulting about copyright and Creative Commons licenses and this work continues.