Key wins on Knowledge Rights 21 priorities in Bulgaria’s implementation of the Digital Single Market Directive

Despite the deadline for implementing the provisions of the European Union’s Directive on Copyright in the Digital Single Market (DSM Directive) already passing in 2021, Bulgaria is definitely a case of better late than never, in no small part thanks to our national coordinator in Bulgaria, Ana Lazarova, and her work to mobilise the academic community. 

In its implementation, there are two important wins for the rights of access to research, education and culture which closely reflect the goals of the Knowledge Rights 21 Programme.

This blog highlights these – see also this in-depth analysis of all aspects of the law.

Boosting Open Science – a Zero-Embargo Secondary Publishing Right

The DSM Directive took only a partial approach to updating the EU’s copyright laws (a full look at the overarching text – the InfoSoc Directive – remains very overdue) and did not touch on the impact of copyright on achieving open science and scholarship goals more broadly.

However, the need to reopen national laws to transpose the EU text offered a helpful opportunity to address weaknesses that are holding back the achievement of public interest goals, not least concerning the rules around the publication of publicly funded research.

Implementing secondary publishing rights and obligations – provisions in legislation that ensure (through rights or obligations) that publicly-funded research is immediately available through open access repositories, without delay or cost – is a key priority of the Knowledge Rights 21 programme, alongside bottom-up initiatives (see our study on author rights retention) to implement rights retention policies at the level of institutions. See KR21’s position paper for more, as well as the report we commissioned on the experience of countries which have already adopted similar measures.

In short, such measures provide a systematic and legally sound way – when correctly drafted – to overcome the imbalance in power between researchers who want their work to be read (and, more importantly, are the recipients of public funds) and academic publishers keen to extract revenues by placing this research behind paywalls (without paying the researcher or peer reviewers). Laws that facilitate the republishing of publicly funded research enable this, when well drafted, by providing a non-waivable right or obligation protected by law to share a version of the research article under an open licence.

We applaud that Bulgaria joined the group of countries with such national provisions. We support in particular, its strong emphasis that (through silence on any embargo period in the text) there should be no embargo and that any contractual provisions in publisher contracts that interfere with the legislation are null and void. 

The law sets out, in three new paragraphs (2-4) of its Article 60, that:

(2) The author of a work of scientific literature created on the occasion of a research, funded in whole or in part by public funding, shall retain the right to make that work or parts thereof available to the public in educational or scientific repositories for non-commercial purposes after its acceptance for publication by a publisher, and shall be obliged to mention the publisher when doing so.

(3) Any arrangement which prevents or restricts what is provided for in para 2 shall be null and void.

(4) A publisher may not impose restrictions on the publication of a work of scientific literature solely on the grounds that it has already been published in an educational or scientific repository for a non-commercial purpose.

In doing so, this closely mirrors the terms of the LIBER Model Law – all the key features are there, with both wholly and partially publicly funded research covered, the possibility to public work immediately in a repository, and a clear provision preventing researchers from being pressured to sign away this right. The legislation further protects researchers using this possibility from retaliation by publishers. 

The law does have one short-coming: it does not oblige that tax-payer funded research is made public. An author can decide to make the work public but the question is whether they will.

These provisions can, of course, require time to take effect, and work will be necessary within the research community, notably among librarians, to educate researchers and ensure they utilise this possibility. Nevertheless, this is a further illustration of the spread of secondary publishing rights as a key pillar of any comprehensive open science strategy.

Ensuring rightsholders cannot remove user rights by contract or by technical means

A second success linked to Knowledge Rights 21’s areas of focus is centered around technological protection measures (TPMs) and contract terms, and how to ensure that these do not stand in the way of legitimate public interest uses of works. 

Provisions to this end do feature in the DSM Directive, with the helpful clarification – at least in relation to the copyright exceptions covered there – that when we are talking about licensed materials (practically the case for almost all digital content) there is the right to demand the removal or circumvention of these TPMs in order to allow for activities that the Directive deems lawful, e.g. text and data mining (TDM), preservation, etc..

In the case of TPMs, the problem with the Directive – and a core question for KR21 – is how effective this protection is. The law at European level does not offer much in terms of ensuring that rightholders actually enable access.

The Bulgarian reform – following a similar forward-thinking model to that of Slovenia – offers a solution in the new Article 26(k)(1):

When a user under Art. 26g has requested the holder of the right to provide him with access to the object of protection under the conditions and according to the order of Art. 25a, para. 2, the holder of the right is obliged to provide the necessary access within 72 hours of receipt of the request.

In doing so, the Bulgarian law not only incorporates the principle from the Directive but gives it teeth by making clear that there is a 72 hours time limit for rightholders to provide access. Once these three days are up, in effect, the question then becomes whether non-compliance by the rightholder empowers the user to act to remove or circumvent the digital locks. 

Furthermore, there is a very welcome general provision on contract override of copyright exceptions (described as ‘free uses’, in line with the Berne Convention) in the new second paragraph in Article 23:

Any arrangement which prevents or limits the right of free use is considered null and void, unless otherwise provided by law

This is a positive step, in particular the fact that it is not limited to those exceptions covered by the DSM Directive, and follows a model already in place in Ireland, Belgium, Portugal, UK and Montenegro.

As highlighted, the impact of these changes – both the new secondary publishing right, and the new possibilities around TPMs and contracts – will likely require time to take effect, and their impact will rely on the readiness of researchers, educators and librarians to put them to use. However, without these legal protections in law, the possibility to make a reality of the rights to research, education and culture in the 21st century are seriously hampered. 

In respect of these changes, in part thanks to Ana Lazarova the Bulgarian law is, therefore, both a major step forward for knowledge rights in Bulgaria, and a great model for governments across Europe.

22 January 2024