MoodleNet/Copyright Directive

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On 26th March 2019, the European Parliament narrowly passed new legislation around a Copyright Directive. There are many interpretations of this in the press and via lobbying groups, with the European Commission's official press release accessible here.

The most useful document for considering the impact of the Directive on MoodleNet is the memo entitled Questions and Answers – European Parliament's vote in favour of modernised rules fit for digital age from which we learn the following:

The Directive aims to create a comprehensive framework where copyrighted material, copyright holders, publishers, providers and users can all benefit from clearer rules, adapted to the digital era.

In order to achieve this goal, the Copyright Directive focuses on three main objectives:

• Wider opportunities to use copyrighted material for education, research and preservation of cultural heritage: the exceptions allowing these uses have been modernised and adapted to the technological changes, to allow uses online and across borders.
• More cross-border and online access for citizens to copyright-protected content: The Directive will contribute to increase the availability of audiovisual works on video-on-demand platforms, facilitate the digitalisation and dissemination of works that are out of commerce and will make sure that all users are able to circulate online with full legal certainty copies of works of art that are in the public domain.
• Fairer rules for a copyright marketplace which will function better and will stimulate the creation of high-quality content: a new right for press publishers in relation to the use of their content by online service providers, a reinforced position of right holders to negotiate and be remunerated for the online exploitation of their content by user-uploaded content platforms and transparency rules related to the remuneration of authors and performers.

There are some measures intended to level the playing field for organisations that aren't the size of Facebook and Google:

In situations where there are no licensing agreements concluded with right holders, the platforms will need to take certain actions if they want to avoid liability. In particular, they will need to (i) make best efforts to obtain an authorisation, (ii) make best efforts to ensure the unavailability of unauthorised content regarding which right holders have provided necessary and relevant information and (iii) act expeditiously to remove any unauthorised content following a notice received and make also their best efforts to prevent future uploads.

[...]

New small platforms... which have less than three years of existence in the Union and which have a turnover of less than 10 million euros and have less than 5 million monthly users... will only have to prove that they have made their best efforts to obtain an authorisation and that they have acted expeditiously to remove the unauthorised works notified by right holders from their platform.

It is unclear as to how this would apply in the case of Moodle and MoodleNet, as:

• Moodle Pty Ltd is based on Australia but has a subsidiary in Europe (which was set up in 2018)
• MoodleNet will be mainly deployed by organisations other than Moodle Pty Ltd (including Moodle Partners, universities, and NGOs)
• Moodle Pty Ltd will be running a 'HQ Mothership' which will store publicly-available metadata from MoodleNet instances

The MoodleNet team is currently working with Moodle's Privacy Officer and external Data Protection Officer to ascertain the impact of the Copyright Directive. If what is provided by MoodleNet is a place for individuals to discuss, curate, and share, then perhaps the Copyright Directive is not directly applicable?

The Directive does not target individual users, but online uses of press publications by large online platforms and services, such as news aggregators. Internet users will continue to be able to share content on social media and link to websites and newspapers (acts of hyperlinking), just as it is the case today. Moreover, the acts of hyperlinking and the re-use of single words or very short extracts by online platforms and services will be excluded from the scope of the new right granted to press publishers of press publications.

In addition, the European Parliament are no longer imposing 'upload filters':

The new rules do not impose uploading of filters nor do they require user-uploaded platforms to apply any specific technology to recognise illegal content. Under the new rules, certain online platforms will be required to conclude licensing agreements with right holders - for example, music or film producers - for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make their best efforts to ensure that content not authorised by the right holders is not available on their website. The “best effort” obligation does not prescribe any specific means or technology.

Finally, there's an exception for educational content (emphasis in original):

The new teaching exception for educational establishments and teachers covers digital cross-border uses of content protected by copyright for the purposes of illustration for teaching, including online. This will for example ensure that educational establishments can make available, in full legal certainty, teaching content to distance students in other Member States through their secure electronic environment, e.g. a university's intranet or a school's virtual learning environment.

It would seem that, so long as we are careful and clear in our implementation, the new Copyright Directive will not prevent MoodleNet from flourishing as a federated resource-centric social network for educators!