By P. P. Polański
A legal framework has become increasingly difficult to get familiarized with. Legal uncertainty that surrounds elearning activities is an off-spring of mounting Internet law issues, which are global in nature, yet is increasingly regulated on national or regional level. The European lawgiver has already developed an impressive number of rules applicable to digital networks and therefore to e-learning environments. They fall into several categories i.e. intellectual property, content liability, e-commerce and privacy protection.
Copyright law is national in nature and rules concerning copyright protection vary widely not only on international level but even between Member States of the European Union. Harmonisation efforts undertaken on the EU level have approximated laws of the Member States but only to a limited degree. Member States of the EU enjoy the same duration of copyright protection or a similar set of rules concerning database and computer programs protection because these rules were harmonized by applicable directives, which mandated Member States to implement them in national legislation. Yet issues surrounding e.g. contracting, licensing, assignments have not been subjected to harmonization and therefore differ across Member States. Furthermore, even areas that have been approximated could be implemented differently in the European Union.
For instance, the directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, approximated laws of the Member States related to exceptions from reproduction or communication rights, including fair use or teaching exception. However, these permitted uses of copyrighted works were not made obligatory and it was left to the Member States to implement them or omit them. Consequently, fair use exception differs widely between states in the European Union. The teaching exception, in turn, has been formulated in a way that makes it applicable only for non-commercial purposes and only in the case of use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible. Non-commercial purpose in particular may raise practical problems for private educational establishments as well as e.g. public universities, which rely on electronic content for the purpose of illustrating courses offered for a fee. In addition, the directive has not made this exception mandatory, so teachers and lecturers cannot rely on it and shall make sure that their legal system actually permits the use of copyrighted works for the purpose of teaching.
Furthermore, even in these areas that have been harmonized deduction of legal rules may turn out to be far from being straightforward. For the sake of illustration, directive 2001/29/EC on harmonization of copyright in information society has proposed a very broad content of rights, such as reproduction right or right of communication to the public, which is of such importance in the digital world. The right of communication to the public has for years been interpreted as not embracing linking, which were – with some exceptions – treated as permissible use not requiring the consent of the copyright holder, whose protected works were being linked to. Therefore, websites linking to e.g. YouTube videos or other third party content publicly available were not regarded as infringing the right of communication of the copyright holder. Yet, in the latest judgment of the ECJ the justices changed their liberal view on the legality of linking.
In the latest ruling in the case of GS Media vs. Sanoma, ECJ held that Article 3(1) of Directive 2001/29/EC “(…)must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.”
Legality of linking from now on will have to be assessed based on the criterion of pursuit of financial gain. Those content providers who do not profit from linking could be shielded from liability resulting from linking to protected works, but this criterion may be very difficult to apply in practice. One must bear in mind a broad definition of information society service providers in the directive on e-commerce, which made it clear that even providers of free services to end users, such as Google or Facebook, shall be regarded as information society service providers, because they receive remuneration indirectly i.e. from advertisers. If one adopts this interpretation then even small bloggers could be potentially threatened with lawsuits resulting from links they make on the site, because one could argue that they seek financial gain from future advertisers. This may have an impact on developing e-learning industry particularly from the perspective of content development. Content developers may have to re-think their policies towards linking to third-party resources, if their contents is being offered on a commercial basis.
This is not the end of potential interpretation difficulties. GS Media case created a rule that established a presumption that a ‘for-profit’ service provider who linked to a protected work knew about its infringing activity. This presumption, however, cannot not be easily reconciled with basic principles concerning liability of intermediaries set out in Articles 12-15 of the directive on electronic commerce. These principles make it clear that service provider is not obliged to actively seek information indicating illegal activities and has to block access to illegal content only upon obtaining knowledge or receiving notice.
Assuming that e-learning service provider relies on hyperlinks created by its own editors as well as those generated by the community of its users and therefore could be regarded as a hosting service provider within the meaning of Article 14 of directive on e-commerce, one may wonder whether the limitations of liability established therein would be still be applicable to his operations. One must bear in mind that according to Article 14 of the directive 2000/31/EC where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. If provider’s knowledge is presumed then its operations would not be shielded from liability. Such interpretation, however, would be in contrast with a black letter of the EU law concerning liability of intermediaries.
This is but one of the examples concerning uncertainties regarding conducting e-learning activities in cyberspace. There are many other areas that require careful analysis and scrutiny. In particular, the new General Regulation for Data Protection, which will enter into force in 2018 may introduce additional burdens and challenges that go beyond issues such as processing of personal data of students outside of the territory of the European Union or dangers associated with storing, processing and exchanging sensitive data concerning e.g. political beliefs or financial standing. The new Regulation envisages introduction of Privacy by Design and Privacy by Default principles, which may force e-learning software houses to re-think the design of the processes offered by their solutions.
Yet, legal uncertainties emerge not only due to entry into force of new laws but also as a result of the operation of the European Court of Justice, which often gives an entirely new meaning to old concepts and therefore actually creates new rules. The realities of life will continue to test broad assumptions of lawgivers and the resulting case law of the ECJ may create even more uncertain spots for e-learning communities in Europe and outside.