This section aims to familiarise readers with Article 5 of the DSM Directive, which introduces a mandatory exception and limitation to copyright for education. The section was authored by Teresa Nobre. It represents the views of Communia on the implementation of that provision.

For a summary of this guide please see the TL;DR version of this guide:

TL;DR Article 5: Digital and cross-border teaching activities

Article 5: Table of Contents

What is at issue in Article 5?

🥥 In a nutshell

Currently, Member States are not obliged to have exceptions to copyright allowing educators and learners to use copyrighted materials in educational activities. There is a robust educational exception in the EU law, but it is only optional, so not all Member States have implemented it as such. The fact that some countries have strong educational exceptions and others do not fragments and severely limits education in the EU region.

Article 5 tries to solve some of these issues, by making it mandatory for Member States to introduce or maintain in force in their national laws an educational exception giving educators and learners at educational institutions the freedom to use copyrighted materials in digital and cross-border teaching and learning activities.

This mandatory educational exception allows educators and learners, in a formal education setting, to make certain digital uses (e.g. scanning, uploading, streaming) of copyrighted materials (e.g. images, text, video) without having to ask permission to copyright owners beforehand, provided that they respect the conditions defined in Article 5.

Giving similar rights to educators and learners in the EU region would be a big step forward if the EU lawmakers had not given Member States a couple of harmful options (which they may or may not include in their national laws when doing the implementation of this new educational exception):

one that fragments the exception across the EU, which is the option that each country has to define the extent to which a piece of content can be used in such country (e.g. 5% of a textbook or video in country A, 15% of a textbook or video in country B); and
another that nullifies the exception entirely, which is the option to take away the educators and the learners right to use a certain piece of content under the exception as soon as copyright owners start selling licences for said content.

Member States wanting to do just what they are obliged to, should implement the new mandatory exception without the harmful options mentioned above. Member States wanting to provide for a better environment for education in their countries, shall make use of all the policy space available to them under the existing optional exception. The latter is the ideal scenario.

Some context

Currently, the educational exceptions do not work the same way in every EU country. This is because the existing Copyright Directive (aka InfoSoc Directive) only gives Member States the option to implement in their national laws a copyright exception or limitation for educational purposes (Article 5(3)(a) InfoSoc Directive). Because this is an option, and not an obligation, some EU countries have only narrow exceptions that do not align with the daily needs of teachers (e.g. where a teacher would be forbidden from showing a short Youtube video in class) and students (e.g. where students cannot include more than a snippet of an image in their assignments).

The fact that the existing educational exceptions are so different from country to country creates legal uncertainty for teachers, promotes inequality among students and severely limits digital and online activities as well as cross-border collaboration. The new Copyright Directive (aka DSM Directive) attempts to harmonize this fragmented legal landscape, by requiring Member States to implement in their laws the same minimum set of rights for digital and cross-border teaching activities (Article 5 DSM Directive). However, as explained above, that objective will only be fulfilled if Member States do not make use of a couple of harmful options contained in the new Copyright Directive.