La tradición de los baños en el origen del balnearismo.

Article 5(3)(a) of the InfoSoc Directive gives the option to Member States to implement exceptions and limitations allowing uses of copyrighted works for the sole purpose of illustration for teaching or scientific research without commercial purposes. Such uses require, whenever possible, the indication of the source and the author’s name. According to the text of the InfoSoc Directive, the requirement of illustration applies only to teaching rather than to scientific research. Recital 42 includes distance learning (e.g. e-learning) in the scope of application of this exception. In principle, the formulation of Article 5(3)(a) is quite open, thus leaving room for diverging implementation at Member State level.237

In France, this exception allows communication or reproduction of excerpts of copyrighted works and is subject to sectoral agreements as well as to additional conditions. For instance: i) works made for educational purposes, sheet music and works made for a digital edition of literary works are excluded; ii) the public can include only pupils, students, teachers or researchers; iii) right-holders are entitled to fair compensation; iv) the purpose of illustration is mandatory also for research. In Poland, disseminated works (in original or in translation) can be used by research and educational institutions for teaching and research activities; there is no mention of the illustration purpose nor of non-commercial purposes. The recent implementation in the UK is limited to non-commercial purposes, requires sufficient acknowledgements of the right-holders and covers: i) the uses of copyrighted works for the sole purpose of illustration for instruction (these uses are shielded from contractual restrictions and licensing agreements); ii) the recording and communication of a broadcast, provided that no licensing agreement is available; iii) the copying of extracts of works, provided that no licensing agreement is available. Germany, Ireland and Italy did not

236 _{Remote consultation usually includes ‘on campus’ access via the university network and, with} increasing frequency, ‘online’ access via proxy servers or virtual private networks.

237 _{European Commission (2013), Public Consultation on the Review of the EU Copyright Rules,}

Consultation Document available at:

http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/ docs/consultation-document_en.pdf.

implement this provision. In Germany, a similar exception existed before the enactment of the InfoSoc Directive; this exception, similarly to the case of France, is limited to small parts of works, requires a public composed of a limited number of students or scientists, and entitles right-holders to receive fair compensation; in line with the formulation of the InfoSoc Directive, the illustration purpose is not mandatory for scientific research. In Ireland, the exception is partially covered by exceptions and limitations for libraries, educational establishments, archives and museums and for research or private study. In Italy, the quotation exception deals also with illustration for teaching and for scientific research; the purpose of illustrations is mandatory also for scientific research and the making available on the Internet is permitted only for certain types of works (music works and pictures at low resolution or low quality) (see Annex A).

The exception under Article 5(3)(a) of the InfoSoc Directive may hinder the functioning of the Internal Market for what concerns distance learning that may include a cross-border dimension. In particular, by virtue of the principle of territoriality, in e-learning services the copyright law of both the State where the university/educational establishment is located and the State where the student is accessing the course apply.238 _{Whenever students follow} classes or get access to copyrighted materials in a Member State other than the country where the university is based, copyright infringement may result from the diverging transposition of Article 5(3)(a) between Member States or by different interpretations given by national courts. In principle, a certain university or practitioner that intends to provide a multi-territorial e-learning service is required to seek legal advice in each concerned Member State in order to avoid being liable for copyright infringement. Another problem arises from the introduction in some countries of fair remuneration requirements; in particular, in cross- border uses the jury is still out when it comes to the determination of the party liable as well as the territory where the payment is due (De Wolf & Partners, 2013). Against this background, the current fragmentation at the EU level may potentially discourage the provision of e-learning beyond national borders and the creation of an Internal Market for distance education.239

Similarly, discrepancies in the application of this exception to research activities might impinge on the dissemination of research results within the EU as well as on cross-border cooperation in research activities. Paradoxically, copyright law might constitute a barrier to the functioning of the European Research Area (which is defined by the Commission as “a unified area open to the world, in which scientific knowledge, technology, and researchers

238 _{Distance learning activities can be categorised in four groups: i) supplementary e-learning, when} supplementary materials are provided online to students enrolled in a ‘standard’ course; ii) e-learning courses provided by a certain university, where an entire course or a substantial part of it is taught online to students who can follow classes via the Internet; iii) massive open online courses (MOOC), which aim at unlimited participation and open access via the web; iv) e-learning courses provided in the context of transnational collaborations between universities, which are cross-border by their very nature. The cross-border dimension is increasingly important going from category i) to category iv) (De Wolf & Partners, 2013).

239 _{This issue is particularly significant when considering that the education market is estimated to be} worth some $4.2 trillion worldwide, i.e. treble the size of the media and entertainment market, and over the next ten years the e-learning market is expected to represent 30% of the total education market (Edxus Group, 2013).

circulate freely”,)240 _{as long as researchers based in different Member States can benefit from} a different bundle of exceptions and limitations to copyright and related rights.