Education: the 5 Most Unfair Licence Conditions

[Teresa Nobre, Communia Association, Link (CC-0)] We recently released our new report “Educational Licences in Europe”, where we analyzed 10 collective agreements in Finland, France, and the United Kingdom. This study shows that educational licences for using copyrighted content in schools include many terms and conditions that restrict users’ rights and that are unfair or unreasonable.

While the small number of agreements analyzed in the study does not allow us to make any safe conclusions with respect to the different licensing schemes, we could not avoid noticing that (some of) the most unfair terms identified in this study are contained in the British licences. And that is interesting to highlight because licences prevail over the teaching exception only in two EU countries: United Kingdom and Ireland (source: IA on the modernization of copyright rules).

One possible explanation for this apparent correlation is that the UK legal framework prevents licensees from refusing licences that contain terms and conditions that will act against their best interests. Educational establishments, or governmental institutions acting on their behalf, are “forced” to accept any licence that is easily available in the market, if they want to continue making the uses that were protected by such exceptions, and that become suddenly covered by the licences. In this context, right holders are “free” to almost unilaterally reshape the terms and conditions of educational uses made under their licences.

If this is not enough to cause concern among lawmakers, here are the 5 most questionable terms and conditions identified in the agreements analyzed in our study:

1. Licensor can inspect materials, secured networks and storage platforms used by schools, without being required to keep the information obtained confidential

Does not prevent licensors from disclosing and making commercial uses of sensitive information, such as data related with the performance of students

2. Licensor can enter a school’s premises at any time, provided it gives reasonable notice, to ensure compliance with the licence and inspect procedures

It can disrupt the normal operation of schools

3. Schools have to take reasonable steps to ensure that licences are not infringed by teachers, students and third parties

It creates an excessive burden on schools that have to start policing teachers, students, parents and third parties

4. School must own, or subscribe to, a copy of the materials it copies, scans or uses under the licences

Does not allow uses of materials owned by teachers and students or borrowed from a library or legally obtained

5. Digital copies may not contain hypertext links (or the like) to any external or third-party website

It prevents teachers and students from comparing, verifying and updating information and knowledge

Solutions

To avoid spreading these licensing conditions across Europe, lawmakers should consider adopting the following measures:

  1. Prevent license priority, or provide only for limited priority to those contractual arrangements that are mutually agreed by the parties.
  2. Render contractual provisions that restrict the scope of protection afforded by a copyright exception or limitation unenforceable.
  3. Give schools access to affordable mediation and litigation, to challenge with ease the terms of a licence that are thought to be unfair or unreasonable.
  4. Assess the need to submit educational licences to public regulation.

 

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