A Digital Knowledge Act for Europe
Knowledge institutions — such as education, research, and cultural heritage institutions — are one of the pillars of the Digital Commons. They play a crucial role in connecting European citizens to information resources and enabling them to use them, thus contributing to an environment conducive to innovation and the creation of new knowledge. But as we approach the halfway point of Europe’s Digital Decade, these institutions still cannot offer the same services online as offline — a fact that reinforces the dominant position of commercial entities as information intermediaries in the digital domain.
And while the European Union (EU) spends massive amounts on research and innovation, it has failed to prioritize key reforms that would enable universities to create and better disseminate knowledge and technologies. Academic researchers are too often prevented from sharing digital research resources with colleagues, which hampers research transparency and collaboration across borders.
In addition, much of the published research funded with public money through Horizon Europe or other public sources ends up behind paywalls, imposing a huge financial burden on other research institutions that need to access it.
Even where the law allows knowledge institutions to access or share certain materials, they are often reluctant to do so for fear of being sued. In the United States, public interest institutions are protected from paying damages if they act in good faith and believe that their actions are permitted by law. In Europe, the lack of such protections, combined with a highly complex and fragmented copyright framework, has a chilling effect on the exercise of users’ rights.
Educational and cultural heritage institutions also face significant barriers when trying to make learning materials available in digital form. Although more and more learning takes place online, knowledge institutions cannot acquire e-books on the same terms as physical books.
To make matters worse, many scholarly publishers and other software vendors for knowledge institutions have transformed their business models into data analytics companies. By offering one-size-fits-all solutions for the entire research workflow, these companies aim not only to lock knowledge institutions into a single system but also to create new dependencies that further entrench the dominance of commercial players in the digital domain.
What needs to be done?
These problems need to be addressed by legislation at the EU level. So far, most regulatory interventions in the digital domain have either ignored the needs of knowledge institutions or, at best, exempted them from the effects of regulation aimed at other actors — often only after considerable advocacy efforts.
As also pointed out by the COMMUNIA association, it is time for a legislative intervention specifically designed to empower knowledge institutions to fulfill their public service mission in the digital environment: A Digital Knowledge Act. Such an act should include some surgical interventions in copyright law, such as a legal solution for library e-lending, but mostly measures that go beyond previous copyright discussions.
Such a Digital Knowledge Act should address five issues:
First, it must enable knowledge institutions, researchers, and educators to enjoy an enabling legal environment in which to carry out their public service mission; this right should extend to joint cross-border activities, ensuring that knowledge institutions, researchers, and educators can collaborate with institutions and colleagues from other countries. The law should also address the issue of adaptation to the digital environment by asserting the right of knowledge institutions to use protected material in digital formats under at least the same conditions as in physical form.
Second, the Act should ensure that access to publicly funded research and public sector materials is facilitated. Publicly-funded research is often unavailable due to copyright restrictions, creating a barrier to scientific progress and depriving the public of knowledge. To strengthen the EU’s commitment to Open Access, a harmonized secondary publication right should be introduced to allow the republication of publicly funded research and make it accessible to the public (see also “A Public Infrastructure for Open Access”).
Third, the law should include provisions to protect knowledge institutions from liability where they act in good faith and believe their actions are permitted by law. The complexity of copyright law in Europe and the risk-averse culture of many public institutions means that knowledge institutions are reluctant to make full use of their rights under exceptions and limitations in order to minimize legal risk.
Fourth, the Act should further protect knowledge institutions from abusive contracts and refusals to license. Given the public interest mission of knowledge institutions, rightholders should be required to license works to them on reasonable terms.
Finally, knowledge institutions should be allowed to circumvent technological protection measures where locks prevent legitimate access and uses of works, such as uses covered by exceptions and limitations to copyright.
Taken together, these measures would significantly strengthen the position of knowledge institutions in the digital field and ensure that they can be a strong anchor for the European Digital Public Space.
Europe’s opportunity
Many elements contained in the above proposal can build on a number of preparatory studies and processes undertaken by the European Commission services during the current mandate and can count on broad support from organizations representing knowledge institutions from across the EU. The new European Commission should make a Digital Knowledge Act a key element of its digital strategy for the second half of the Digital Decade and commit to presenting a proposal for regulation as early as possible in the next mandate.
