Changing tides: Navigating The EU Copyright Directive and education content licensing

Stephen Haggard, co-founder Digital Learning Associates  

At Digital Learning Associates we have been studying the EU Copyright Directive Law for any  challenges and risks it poses the education sector. The so-called “link tax” and “upload filter” clauses of the Directive have attracted controversy. These make platform owners liable to pay licence fees when users incorporate rights-holders’ content into their outputs on the internet. The EU has the large platforms in its crosshairs: Facebook, Google and their ilk. Under the Directive, social content posted by users, and containing rights-protected material, will become the platforms’ responsibility to clear for copyright including paying fees, or take down. But education users are also feeling a chill.

Teaching is where impact could be widest: the European Commission’s own studies showed that the majority of students and nearly half of teachers regularly send and link digital works across the internet. A carve-out for the education sector means teaching activities are in theory exempt from the Directive, but it’s not so simple. European States can express the Directive in their national laws as they wish, which could create a complex patchwork of rights legislation territory by territory for transnational education operators to negotiate. International chains, including language schools, pathway providers, and branch campus models, are exposed.

The education exemption has a weakness which will be problematic for Universities. It does not apply where a rights-managed version of the online material is also available. Proving that no licensed alternative versions of content are on offer (eg from publishers) will become a new responsibility, presumably of Information Services managers, if they want to keep clean noses.

We predict it will add up to a move in education to “safe” rights-managed content. Content developers like Digital Learning Associates, working with internet-sourced materials to develop transnational learning programmes, provide service to teachers mainly by repackaging content, including content that can also be found “for free” on the internet, so that it becomes lesson-friendly and syllabus compliant. As part of our processes, our material becomes rights-managed, and we can thus offer indemnities on copyright claims. As the “get it free on YouTube” alternative starts to look less appealing, we are feeling some the benefits.