European Commission Consultation 2014 Teacher

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You are a teacher or a researcher[edit]

Frequently, copyrighted material needs to be accessed for effective teaching and research purposes. Too often educators and researchers, but also pupils and students, are uncertain about what they are able to do without violating copyright. Clear and strong exceptions are required for the effective and healthy development of these crucial activities in society.

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To prepare your response, we recommend that you read the following proposals:[edit]

3. Solid exceptions for educational and research practices[edit]

Education and research practices are deeply transformed in the digital era. Let's consider education. Three major transformations are at work: educational practices do not take place only into teaching organizations; the notion of "educational resource" is meaningless since education practices can and do use any work or information; and finally, students are more and more authors or producers of contents and not just users of pre-existing contents. The present European approach of limited, heterogeneous and facultative exceptions for education is so much unsuitable that the European Commission itself considered in its Green Paper on Copyright in the Knowledge Economy to make education exceptions compulsory in Member States and extend their scope.

There is no decent society without education and research exceptions applying in all countries and respectful of the following principles:

  • the exceptions must apply to educational or research practices, independently of the frame in which they are conducted. For instance, the educational exception can not be limited to teaching establishments, or to the fact that the participants are registered students. Open education, in all its form, must be included, as well as cultural practice workshops or educational activities in libraries and museums. However, education must remain distinguished from other use by the nature and aim of the activity and by the distribution of roles between teachers, instructors, tutors or mediators on one side and participants on the other side. Research must be defined by the nature and aim of the activity, as it is or should be for R&D tax credits.
  • The exceptions must apply to all copyrighted works. Nobody can decide in advance which work or content will make sense in an educational practice. The exclusion of "published education resrouces" from the educational exception in countries such as France would be laughable, it it were not the sign of an undue power of lobbies on public policy.
  • Education and research exceptions must not require financial compensation by users. Every author knows that there is no use more rewarding (in all senses) than having one's works used in education, for instance.
  • Finally, the general copyright framework must not treat the productions of students or participants in educational activities differently than those from any other authors. The notion of user-generated content is a fiction invented by intermediaries who wish to freely use material for their own purposes while giving no rights to authors and contributors.

Other types of exceptions such as for blind and visually-impaired persons, presently in process of being codified in a legally binding treaty at WIPO thanks to the action of Knowledge Ecology International and specialized organisations, must be treated in a similar manner. They must be compulsory but also defined in a suffficientlty effective and wide manner to enable the desired use (here access to reading and writing).

14. A positive statute for the public domain and the voluntary commons[edit]

These last 30 years, the most important debates on culture and innovation regarded the respective definition of what can be made an object of private property or exclusive rights, and what must be considered as common. Examples of such debates were:

  • the definition of the scope of patentability,
  • the delineation of the use rights that must be recognized to everyone even for copyrighted works,
  • the enforcement of exclusive rights and the burden of proof of either infringement or the legitimacy of use,
  • the ability to share voluntarily one own'w works without being punished by losing some resources.

Such conflicts arise in an unequal playing field. Exclusive rights invoke property rights, identifying intellectual rights with physical property despite all evidence of their different nature. They are also powered by the thick wallet of right holders. In contrast, the rights of each of us are dispersed interests, which can invoke fundamental rights, but without the public domain and communs being granted per se a legal standing.

For these reasons, researchers and legal scholars formulated the project of a positive statute for the public domain, voluntary commons and essential user prerogatives towards works, including the prerogatives of creative workers who need to access and reuse existing works. The aim is to revert, or at least rebalance the situation where the public domain is at most considered as residual or as a market failure, the commons are considered as a territory that one has not yet been privatized, and the user prerogatives are considered as a tolerance that one has consented to because one had not yet found ways to annihilate them. On the contrary, as soon as a positive statute for these common entities will be in place, one will have to consider the impact of any measure on their perimeter, their growth, their maintenance and their effective accessibility.