Copyright & Legal Matters Working Group

The Fundamental Right to Education and Science: Constitutional Law vs Copyright Law

Posted: 09-01-2023 Topics: Copyright & Legal Matters

In October 2022 we witnessed a significant development in Finland, with the Parliament’s Constitutional Law Committee concluding that the government’s draft implementation of the Copyright in the Digital Single Market Directive is not in line with the Finnish constitution. In particular, the Committee found that it conflicted with human rights – namely the right to education and science under Section 16 of the Finnish Constitution.

Academic commentators have long argued that copyright, and indeed other intellectual property rights, risk undermining fundamental rights in their application. Given the obligation on governments to make careful judgements in situations of legal conflict, fundamental rights undoubtedly provide a clear reason for limiting the scope of IP rights. Perhaps the most high-profile example of this argument was made by the Polish Government at the European Court of Justice (CJEU), in its challenge to Article 17 of the Copyright in the Digital Single Market Directive (CDSM Directive).

Until developments in the autumn of this year in the Finnish Parliament, we have been unaware of the fundamental human right to education and science being used in practice by European legislators[1] to challenge the broadening scope of exclusive rights under copyright law.

This is of particular significance given that the right to science, unlike EU copyright law, is a right that extends to all forms of scientific activity – both commercial and non-commercial. Compared to other regions where copyright regulation of research and scientific progress is agnostic to its source, copyright laws to support digital and data-driven innovation in Europe often seems to equate innovation only with the private sector. Despite many cutting-edge technologies and biomedical discoveries originating in universities (e.g., the internet, human genome project, artificial intelligence, etc.), when looking at the recent set of EU digital legislation, universities and other public sector bodies are either entirely forgotten from an innovation perspective or treated, at best, as an after-thought. Thus, it appears that all too often the European legislator believes innovation is something exclusive to the private sector. The European University Association highlights this in response to the European Commission’s New Innovation Agenda: “This stems from a conceptualisation of innovation which is far too conventional to truly capture what Europe does best as an innovator and to legitimise the most appropriate measures for improving its performance.”

In this context, the rejection by the Finnish Parliament’s Constitutional Law Committee (Perustuslakivaliokunta) of the government CDSM draft on the grounds that aspects of the transposition conflicted with the Finnish Constitution is hugely significant. Not only in its findings did the Committee reference freedom of expression, but in its negative evaluation of the draft education and data mining exceptions, particularly §16 of the Finnish Constitution “Educational Rights” (Sivistykselliset oikeudet) was cited. We believe this ruling matters and has national and international significance.  The right to access scientific knowledge and to participate in its development (also called “the right to science”) is enshrined in Article 27.1 of the Universal Declaration of Human Rights. Further, Article 13 of the Charter of Fundamental Rights of the European Union protects the freedom of the sciences, and Article 14 protects the right to education.

The Finnish Constitution Article 16(3) itself states that:

The freedom of science, the arts and higher education is guaranteed / Tieteen, taiteen ja ylimmän opetuksen vapaus on turvattu.

The Constitutional Law Committee identifies Articles 3 and 4 of the CDSM Directive (Text and Data Mining) as being relevant to the “freedom of science guaranteed by Art 16(3) of the Constitution.” Observing the overly narrow scope of the draft transposition, the Committee then proceeded to reject the draft text and data mining articles saying:

“In the view of the Constitutional Committee, the scope for manoeuvre provided by the Directive has not been used in a way that takes balanced account of scientific freedom. The Education Committee should amend the regulation so that scientific freedom is taken into account more than in the current proposed regulation.” 

Turning to the implementation Article 5 (Use of works and other subject matter in digital and cross-border teaching activities), the Committee similarly highlights the constitutional right of education and how the draft conflicts with this fundamental right:

“In the opinion of the Constitutional Committee, the Government’s proposal should have been examined in depth from the point of view of cultural rights. It is also unclear from the current proposal how the various fundamental rights have been taken into account in the use of the national leeway provided by the Directive. The Committee on Education should examine the regulation from this point of view and amend it to take account of cultural rights, if this is possible within the framework of the directive.”

To our knowledge, this is the first time that a European parliament has rejected a draft transposition citing the fundamental right of freedom of the arts and sciences and the right to education (respectively Articles 13 and 14 of the Charter of Fundamental Rights of the European Union and Articles 27 and 26 of the Universal Declaration of Human Rights).

The European Court of Human Rights has also repeatedly ruled that freedom of expression under Article 10 of the European Convention also covers academic freedoms. In particular, academic freedom in research practices and in training should guarantee freedom of expression and of action, freedom to disseminate information, and freedom to conduct research and distribute knowledge and truth without restriction[2]. The case law in this area relates predominantly to universities, and therefore the Finnish Constitutional Law Committee widening beyond freedom of expression to include freedom of science and the arts, and education is highly significant.

Not only does this broad approach by the Constitutional Law Committee encompass other forms of learning – primary and secondary education, citizen science, etc – it also reflects the fact that no international charters, nor the Finnish Constitution, seek to limit science to public bodies. Research and learning takes place across numerous different institutions, many of which are of course for profit in nature. The importance of private actors in science may indeed be why the Committee has in the context of Article 3 chosen to raise their objections as an unnecessary restriction on the freedom of science.  Whereas the recitals of the Directive clearly point to the possibility of public-private partnerships (PPP), the Directive provides little guidance at a technical level for member states on how the exclusive acts of reproduction and making available are to be approached when working with a commercial company. It seems likely that by framing objections as an issue of freedom of science, and not just university research, the Finnish Parliament is implicitly wanting to maximise the scope of machine learning innovation and ensure that its benefits are felt beyond the ivory towers of academic institutions.

Whereas competition law tools seem to provide few mechanisms to defend the public interest against the ever-growing exclusive rights granted to rightsholders, as the thresholds of market share are infrequently reached, fundamental rights as we see in Finland may. A priori Finland has shown that at the national level human rights guaranteeing freedom of education, science and the arts can be used to foster a vibrant scientific and educational community – a marker of a healthy society.

At the European level also, European Parliamentary Committees when scrutinising proposed copyright and other intellectual property legislation can (and no doubt do to differing extents) rely on fundamental rights. From the perspective of libraries and educational establishments, the obvious committees that should reflect on and be inspired by these developments in Finland are the Committee on Industry, Research and Energy (ITRE), the Committee on Culture and Education (CULT) and the Committee on Civil Liberties, Justice and Home Affairs (LIBE). Of particular relevance to these Committees, in the context of the right to education and science, and freedom of expression, is the Fifth Fundamental Freedom of the European Union. Despite the “Fifth Freedom” of the European Union being the free movement of knowledge within the European Research Area and the Single Market, from the perspective of copyright law it has more often than not felt more like the “forgotten freedom.” By highlighting and focussing on the importance of fundamental rights in the context of the Fifth Freedom, the European legislator has the ability to deliver far more technology, science and innovation-friendly copyright law than it has hitherto done.

We urge the European Commission and the European Parliament to put the right to education and science alongside the Fifth Freedom at the heart of their intellectual property policy formation. How we support science, research and learning needs in the European Research Area must be at the heart of our IP and digital law making – not the afterthought it too often is.

This blog post was written by Benjamin White in the context of the LIBER Copyright and Legal Matters Working Group. Are you interested in joining the group? Contact the Working Group chair. 

[1] CDSM, Digital Services, Act, AI Act, Data Act etc

[2] Julia Laffranque, “A Look at the European Court of Human Rights Case Law on Moral Issues and Academic Freedom” (2017) 26 Juridica International 34

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