The Education Exception: A Comparative Analysis of US and EU Copyright Law Concerning Educational Access and Use

Copyright law protects original works of authorship from reproduction, distribution, performance, display, or preparation of derivative works without the permission of the copyright holder.[1]  Educational exceptions in copyright law allow certain uses of copyrighted material for teaching and learning without requiring prior permission from the copyright owner.[2]  These exceptions are crucial for ensuring equitable access to educational resources while respecting intellectual property rights. Common activities covered by educational exceptions include photocopying and reproductions, classroom displays and performances, digital sharing, and research.[3]  The goal of these exceptions is to enable learning institutions to operate effectively without facing prohibitive costs or legal barriers, particularly in non-commercial, educational contexts.

At the heart of global copyright law is the Berne Convention, which permits limited exceptions for teaching purposes.[4]  The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement further reinforces this balance, allowing countries to create exceptions as long as they do not conflict with the normal exploitation of works.[5]  Meanwhile, the Marrakesh Treaty has been pivotal in enabling access to educational resources for people with visual impairments, particularly in developing countries.[6]  Despite these international guidelines, the interpretation and application of educational exceptions differ significantly among Western nations.

In the United States, flexible "fair use" doctrine evaluates whether an educational use is permissible based on factors like the purpose, nature, substantiality, and market impact of the use.[7]  This flexibility has been tested in cases like Cambridge University Press v. Becker, which examined the use of unlicensed digital course materials in universities and placed significant value on whether the potential revenues of the copyright holder have been reduced due to the use.[8]  Fair use is determined on a case-by-case basis and does not provide blanket protection.[9]

Additionally, the Technology, Education, and Copyright Harmonization (TEACH) Act in the United States provides specific exemptions for digital and distance learning.[10]  It allows educators to use copyrighted works in online and distance education settings when the use occurs at an accredited, nonprofit educational institution, the material is directly related to the course content and limited to students enrolled in the course, only small portions of works are used, and the institution has policies to prevent unauthorized distribution or misuse of the material.[11] The TEACH Act is narrower than fair use and requires compliance with these detailed conditions.

The education exception in US copyright law provides some flexibility for educators and institutions but is limited in scope. While fair use offers broader discretion, it requires a case-by-case analysis. The TEACH Act offers specific protections under stricter conditions. Institutions and educators should always evaluate their use carefully to ensure compliance.

Across the Atlantic, the European Union’s Copyright Directive provides rules applied across the region, allowing member states to permit non-commercial educational uses with proper attribution.[12]  Article 5 of the DSM Directive introduces a mandatory exception for educational uses, with key provisions analyzing scope and place of use, control of access, and member states’ licensing preferences.[13]  This harmonizes the teaching exception across the EU to an extent, though member states still retain some flexibility in implementing it. Additionally, Article 5(3)(a) of the InfoSoc Directive allows EU member states to permit the use of copyrighted works for educational purposes without obtaining the copyright holder’s permission.[14]  Educational institutions can rely on this exception when their use is for illustration for teaching or scientific research, or when the use serves a non-commercial purpose. Additionally, the exception applies when the source, including the author’s name, is credited, and use complies with fair practice, meaning it should be proportional and limited to what is necessary for the educational purpose.[15]

The EU exception is generally more prescriptive and uniform across member states (due to the DSM Directive), whereas the US exception relies heavily on Fair Use, which is more flexible but determined on a case-by-case basis. The EU teaching exception requires the use of copyrighted works to remain within secure digital environments for online learning, while the US has broader protections (e.g., through the TEACH Act) but with more detailed institutional requirements.

While both the EU and US copyright frameworks provide mechanisms to enable the use of copyrighted materials in education, their approaches differ significantly in scope and application. The US relies heavily on the flexible, but case-specific, Fair Use doctrine and the TEACH Act, which offer educators latitude in incorporating copyrighted works, but require careful compliance with nuanced requirements. In contrast, the EU employs a more structured and harmonized approach under the InfoSoc Directive and the DSM Directive, mandating clear exceptions for teaching purposes, while allowing member states some flexibility in implementation. The EU’s emphasis on secure digital environments and proportional use reflects its focus on safeguarding the rights of copyright holders, even in educational contexts. Meanwhile, the US approach prioritizes flexibility and transformation, albeit with the potential for legal uncertainty. Ultimately, both systems strive to balance the interests of educators, students, and rights holders, but they do so in ways shaped by differing legal traditions and policy priorities.

 Aekta Mouli is a staff member of Fordham International Law Journal Volume XLVIII. 

[1] U.S. Copyright Office, What Does Copyright Protect?, https://www.copyright.gov/help/faq/faq-protect.html#:~:text=Copyright%2C%20a%20form%20of%20intellectual,not%20protected%20under%20copyright%20law.

[2] Am. Univ. Libr., What Faculty Need to Know About Copyright for Teaching (2010), https://www.american.edu/library/documents/upload/copyright_for_teaching.pdf.

[3] Id. at 18.

[4] Berne Convention for the Protection of Literary and Artistic Works art. 10(2), Sept. 9, 1886, as revised at Paris, July 24, 1971, 1161 U.N.T.S. 30.

[5] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 13, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.

[6] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, June 27, 2013, 52 I.L.M. 1293.

[7] Am. Univ. Libr., supra note 2, at 8.

[8] Cambridge Univ. Press v. Becker, 863 F. Supp. 2d 1190 (N.D. Ga. 2012).

[9] Id.

[10] Technology, Education and Copyright Harmonization (TEACH) Act, 17 U.S.C. § 110(2) (2023).

[11] Id.

[12] European Comm’n, Questions and Answers – New EU Copyright Rules (June 3, 2021), https://ec.europa.eu/commission/presscorner/detail/en/qanda_21_2821.

[13] Council Directive 2019/790, art. 5, 2019 O.J. (L 130) 92.

[14] Council Directive 2001/29/EC, art. 5(3)(a), 2001 O.J. (L 167) 10.

[15] Id.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.