Blow Away the January Blues! 10 Takeaways from four European Commission Studies on Research and Copyright
23 January 2023
In agreeing to pursue the Policy Agenda for the European Research Area 2022-24 (ERA Agenda), the European Union’s Member States have taken an important and welcome step towards a more comprehensive policy approach to boosting Europe’s research and innovation performance .
The largest single section of the ERA Agenda focuses on ‘deepening a truly functioning internal market for knowledge’, a theme that can be read as delivering on the long-overdue commitment, in Article 176 of the Treaty of the Functioning of the European Union, to the free movement of knowledge – arguably the Fifth Freedom of the Single Market.
One of the top priority areas for reform designated by Member States as part of the ERA Agenda is the need to ‘propose a EU copyright and data legislative and regulatory framework fit for research’.
This of course aligns closely with the goals of Knowledge Rights 21. Our work is focused on ensuring that the debate around the design and implementation of copyright laws that govern education and research is reconceptualised. Rather than focusing only on the narrow interests of a small number of players that comprise the copyright industries, the EU needs to give proper attention to the value of research and innovation as a key driver of growth and competitiveness.
A first step in the delivery of this part of the Commission’s work is a series of four expert reports, published at the beginning of August of last year. They collectively provide an excellent overview of how things stand now, not just as concerns the laws on the statute book, but also the way that laws are made.
In particular, they address EU copyright and access to data (by Martin Senftleben), and access to and reuse of scientific publications (Christina Angelopoulos), as well as the impacts of the Digital Services Act and Digital Markets Act on research (Björn Lundqvist) and on the Open Data Directive, Data Governance Directive and Data Act (Mireille van Eechoud).
While summer may seem a long way away (at least in Europe), we encourage you to add them to your reading list for the new year. In this blog, we highlight some of the key points they raise:
1. The status quo is not good enough: a common theme across the reports is a concern that the way things stand now is not enough for the EU to fulfil its research goals. Senftleben and Lundqvist both strongly highlight the legal uncertainty faced by researchers, as well as the complexities they must deal with in order to carry out their work. Lundqvist in particular argues that legislation too often imposes costs on, rather than enables research undertaken in Europe.
Perhaps the strongest condemnation comes from Christina Angelopoulou, who underlines that the current scientific publishing business, which has such a key role in determining access and use conditions, is dysfunctionally restrictive. All of the authors agree that there is a pressing need for action.
2. EU copyright law should allow the upholding of research rights… but it doesn’t: Senftleben and Angelopoulos both look at existing copyright focused laws, and note the implication from decisions of the Court of Justice of the European Union that it is the duty of copyright lawmakers to balance the interests of creators with those of the wider public.
However, as the two authors clearly note, the laws we have today at the European level are not doing this. Rightholder rights are strong and broad, exceptions for users are narrow, complex and often weak, although even this isn’t a uniform picture across the EU. In sum, fundamental user rights such as freedoms of expression, information and science are not being safeguarded.
3. ‘Safeguards’ rapidly become straitjackets: Senftleben’s analysis of milestone pieces of copyright legislation over the past 20+ years identifies a potential reason for the inadequacy of the rules we have today – the tendency of lawmakers to believe the arguments of rightholders that they need ’safeguards’ to avoid disaster. These requests are often backed up by dubious statistics (something referred to as “lobbynomics”) and are in part motivated by claimed fears of piracy. They are also likely driven by a desire toto throttle free uses such as exceptions and limitations that they see as undermining sales.
The problem is that these safeguards even where legitimate are often more like straitjackets –completely out of all proportion to the goal pursued. They serve rather to undermine innovation, for example by trying to protect databases, limiting non-competing uses, or completely negating lawful uses by over-protection of digital locks (technical protection measures). Fortunately, as Senftleben points out, the Court of Justice appears to have been more attentive to this issue than the legislator, and so has made judgements that promote a more open, innovation and public interest friendly approach.
4. Laws are too often made without consideration of the impacts on research: Beyond implementational barriers, another reason for the poor treatment of research in much recent legislation has been simply a failure to consider impacts. Lundqvist underlines that with regard to the Digital Services Act, there seems not to have been any proper consideration of what the rules could mean for universities and other educational institutions.
Van Eechoud also underlines this point around the various data acts which have recently been passed or will be soon. While the Open Data Directive focuses extensively on research data, the rules regarding libraries, education and research more broadly differ. Meanwhile, the Data Act in focussing on emergencies fails to understand use of data for research in universities is an everyday affair, and the Data Governance Act could prove tough for institutions that inadvertently fall under its provisions.
5. Repositories are particularly at risk: One specific issue highlighted by Lundqvist is the fact that a lot of recent legislation has consequences for the repositories at the heart of the open access infrastructure. Despite the successful effort to ensure a clear carve-out in the Directive on Copyright in the Digital Single Market (not in the original draft and resulting from library groups pointing out the oversight), this has not been replicated in the Digital Services Act, and moreover there has been an absolute failure to look at what the costs may be to them.
The key problem is that with lawmakers determined to tackle the challenges around the behaviour of the larger multinational technology players, repositories – which also welcome content uploaded and shared by users – are too often just collateral damage. This of course is likely to have a negative impact on the development of open access, innovation and scientific progress in Europe, directly in contradiction to the EU’s stated aims.
6. The right rules for libraries matter: Senftleben and Angelopoulos’s reports emphasise the need to think not just about how rules affect use, but also access. We need to address both in order to be able to succeed, with open access offering a neat way of doing this. One element of this is to ensure that copyright enables further use, for example through text and data mining provisions that allow sharing, or secondary publishing rights and rights retention provisions that make the rights of onward users explicit.
However, Angelopoulos also recognises the role of libraries in providing the access necessary so that researchers can then make use of copyrighted works. Helpfully, following a discussion of situations where libraries themselves cannot get hold of resources, Angelopoulou notes ‘users are inhibited in the exercise of their use ‘rights’ by limitations placed on others that restrict them from providing access’. In short, this is a plea to uphold library exceptions as a necessary condition for the fulfilment of the rights of students, educators and researchers.
7. Optional is not an option: a particular challenge with the EU’s core research exception in the InfoSoc Directive is that it is not mandatory. We would also add that none of the education, research and library exceptions across the Copyright Acquis more broadly are mandatory either (and with the exception of Articles 3, 5 and 6 of the CDSM Directive) all can be overridden by contracts and digital locks.
Again, in Senftleben’s and Angelopoulos’s papers, they see this as perhaps the most fundamental issue with the status quo, alongside important questions about why the exception is limited to non-commercial uses and (potentially) illustration only.
Both argue, in their recommendations, that a key step should be to correct this situation. Mandatory uptake will make it easier, to promote research and collaboration across Europe, and to avoid choice of law issues
8) Open up!: In addition to being mandatory, a future research exception should be open. As highlighted above, efforts to reduce the scope of exceptions tend to lead to them being underapplied. A more open approach, as we see in Japan, South Korea, Singapore, the US, Israel etc is naturally more accommodating of data driven innovation by allowing judges to determine what is possible.
Senftleben in particular is strong on the idea of a more open norm for research, which would do away with the artificial difference between commercial and non commercial uses, and many of the issues outlined above. He notes (as does Angelopoulos) that the structure of the research sector, and the goals it works to achieve, provide a particularly strong argument for a more flexible copyright regime.
9) We should be ready to mix legislative and non-legislative steps: Angelopoulos dedicates a large part of her report to discussing potential actions to accelerate open access. She focuses extensively on secondary publishing rights (SPRs) as a means – through legislation – of overcoming the imbalance that can exist between researchers and publishers . She goes into some depth on the LIBER Secondary Publisher Model Law 2022, and makes the case for such a right at a pan-European level in order to avoid forum shopping by publishers.
There is also enthusiastic consideration of rights retention as a short-term solution that doesn’t require legislative change, and that is increasingly being adopted by institutions and funders.
She does consider potential barriers to both of these measures, and in particular dismisses the argument that academic freedom is fundamentally in contradiction with open access mandates (either through rights retention or SPRs). She also notes that, where research is publicly funded, the idea that SPRs are an unreasonable expropriation of rights is weak, but still claims that embargos may be needed (an argument we don’t support). As for rights retention, she suggests clarification about copyright ownership of research would be helpful.
10) Europe can shape practice elsewhere: Finally, Angelopoulos notes that European research and copyright policy is likely to shape policy elsewhere. Europe has taken the lead in acting to regulate the digital world, and in doing so, it will provide a model for others. This makes it particularly important to get things right!
These four reports will, we hope, lead to a reckoning about the inadequacy of current copyright laws and help make the case for action to improve them , as well as to ensure space for grassroots action.
We will look to follow up on this blog in the coming weeks, drawing on more of the detail in each report.to help you in your advocacy!