Open Norms Support Research and Innovation – Time for Europe to Modernise

Europe is the home of much world class research and significant tax-payer funded investment in R&D. In addition to funding research at the national level (e.g France circa  €24 billion pa) there are two major routes by which the EU directly funds research  – framework programme funding (e.g. Horizon Europe which has a budget of €95.5 billion euros running up until 2027 etc)  and structural funds (which tend to go to the less economically developed regions). 

Given that the aim of the funding is to support improvements in the economy and society, it is a given that public funds are used to benefit the commercial application of the research. It is typical, as we see in France, that at the heart of the national research strategy lies technology transfer from the public to private sector and encouragement for much-needed collaboration between public actors and private business.

European Copyright Law Undermines Public Policies Aimed at Supporting the Economy

It seems entirely wrong therefore that European copyright law runs contrary to and undermines public R&D policy at both the national and EU levels. Yet this exactly what it does by excluding commercial research under the enumerated list of exceptions in the Copyright Directive. Thus, any copying for research purposes (certainly organisational systematic copying that falls beyond personal use) will require licensing. This is not something required of our competitors in Asia and North America for example.

The dead-weight cost on European research and innovation performance is heightened by the outmoded rigidity of European copyright exceptions.  The sorts of acts researchers in many European countries are able to carry out are defined inflexibly, outlining in specific detail what is permitted without authorisation from the copyright owner. 

This means, as we have seen most recently with text and data mining exceptions, it takes years for copyright law to catch up. AI has been around since the sixties and yet it wasn’t until 2019 that it became lawful under exceptions in most European countries. Yet many other legitimate research-related uses of copyright works (e.g. right to repair, forward engineering, testing new technologies with copyright works, use of entire copyright works during the pandemic etc) are still not permitted owing to the rigid and inflexible approach to exceptions that exists in Europe. As a result, at best it takes years of legislative wrangling to allow an activity that most people would find entirely reasonable.

New Research on Open Norms

Wanting to understand more about more dynamic approaches to copyright law, in 2023 Knowledge Rights 21 commissioned a study from Bournemouth University’s Centre for Intellectual Property Policy and Management to investigate more flexible approaches to copyright law. (Copyright and Open Norms in Seven Jurisdictions: Benefits, Challenges & Policy Recommendations)

Based on interviews with national experts and a literature review, the research explores the adoption, use and impact of open norms in the following countries – US, Canada, Israel, Japan, Sri Lanka, South Korea and Singapore –  a mix of civil, common and hybrid jurisdictions.

The authors conclude that introducing an open norm has a number of benefits and if implemented by the legislature with care, few if any drawbacks. These benefits include, for example, “allowing a country’s creative, educational and research sectors to progress effectively, and benefit from developments in technology in a timely manner.” Whilst the positives that fair use provides American companies, creators and researchers are well known, this cutting-edge report is particularly important as it highlights the benefits seen in countries such as Canada, Israel, Singapore and Japan, stemming from their introduction of open norms. 

Lessons we can learn from the study include that:

  • Many different types of flexible exceptions exist. These include the quotation exception in the Berne Convention which offers high levels of flexibility, as well as subject-specific open norms (e.g. Japan).
  • Anyone can make use of flexible exceptions – artists, creators, innovators, businesses of any size, students, teachers, libraries, researchers, museums etc.
  • Open norms are compliant with international treaties. The US was not required to amend fair use when acceding to either the Berne Convention or the TRIPS Agreement. Furthermore, retaining fair use was an explicit requirement of the US for accession to Berne. 
  • Open norms can be predictable and certain. When introducing an open norm stability/predictability can be enhanced by:

1. Issuing government opinions (e.g. Israel);

2. Introducing supplementary provisions for “fast track” regulations to further define fair use (e.g. Israel and South Korea);

3. Training of judges (e.g. Canada); and

4. Taking inspiration from foreign case law.

  • Open norms work in civil law countries like Japan, South Korea and Taiwan just as much as in common law countries.
  • Courts are flexible. In Israel, although judges were comparatively conservative, they referred to US rulings and developed their own “fair use plus” interpretations.

A Pro-innovation Agenda for Action at the European and National Levels

Whereas countries outside of the European Union, such as the UK, have no barriers to introducing flexible copyright exceptions that allow both commercial and non-commercial research and therefore support industry, research and development and more, without amending the European copyright acquis the picture is more complex in the EU.

We believe in the context of DG RTD’s current evaluation of the extent to which the existing copyright regime in Europe supports research, it should explore the benefits of introducing an open norm. It should also evaluate the negative impacts on the achievement of public policy goals from of restricting the research exception in the EU Copyright Acquis to non-commercial research. Any modernisation of EU copyright law doesn’t necessarily have to be something as broad as fair use of course. As the Japanese example shows it could be something that merges flexibility with something more research targeted.

In the meantime one strong pro-innovation step that can be taken by all EU member states immediately is to introduce a broad exception that simply replicates Art 5.3(a) of the Information Society Directive. This will require no action at the European level, and by its nature would not step beyond the limitations of the Directive. What it would do is already open the door to a more adaptive, flexible approach to supporting research.

This could literally simply involve a cut and paste from the Directive, or as we see in Ireland (s.50) a recrafting so it reflects legal traditions. Furthermore, any member state doing this should (as in Ireland) ensure that the exception cannot be undermined by private contract or the excessive application of technical protection measures (TPMs). They could use this as an opportunity to revisit the regime and ensure, as in  Bulgaria and Slovenia, that TPMs that block lawful actions allowed by copyright law must be removed in 72 hours.

Europe Cannot Afford to Rest on Its Laurels

It is difficult to understand why public innovation policy that involves tens of billions of euros annual expenditure across Europe has been allowed to be systematically undermined by inflexible and out-dated copyright laws. 

Governments and legislatures need to look beyond the borders of Europe if we want to maintain our competitiveness in the world. In doing this, we can learn from our competitors who have decided to update their laws in a balanced fashion that enhances the opportunities for the creative industries (let’s not forget the massive cultural export industry of countries like Japan and South Korea that dwarf those of most European countries) while wholeheartedly supporting technological, scientific and medical advancement.  In an era of economic, social and environmental challenge Europe has rested far too long on its laurels.

Further resources relating to open norms can be found:

04 March 2024