infoJustice

Martin Senftleben
Report for the EC Directorate-General for Research and Innovation. Full Study (PDF)

EXECUTIVE SUMMARY

To safeguard freedom of expression and information, and the freedom of sciences, of researchers,[1] it is important to improve the legal framework for scientific research in copyright, related rights and sui generis database law. In particular, it is important to remove imbalances that pose obstacles to data access and reuse. Article 5(3)(a) of the Information Society Directive could serve as a reference point for this legislative step. To offer researchers a more robust and reliable legal position, it is advisable to:

• clarify that the requirement of use as an “illustration” only concerns the teaching branch of the use privilege and does not relate to scientific research;
• abandon the requirement of use for a “non-commercial purpose” and, instead, follow the approach taken in Article 3(1) of the Directive on Copyright in the Digital Single Market which, rightly understood, offers more room for publicprivate partnerships and more opportunities to translate research insights into products and services that can be brought to the market;
• recalibrate the determination of lawful access. Instead of requiring access permissions of each individual institution participating in a research project, it should be sufficient that one participating institution has lawful access;
• clarify that, regardless of the volume of use, scientific research constitutes a “special case” in the sense of the three-step test of Article 5(5) of the Information Society Directive because of the fundamental rights underpinning
  following from Articles 11(1) and 13 of the Charter of Fundamental Rights;
• clarify that, in the assessment of a conflict with a normal exploitation or an unreasonable prejudice to legitimate interests of right holders under Article 5(5), it is necessary to take benefits into account which right holders,
  such as academic publishers, derive from the work of researchers and the results of scientific research projects;
• grant researchers the right to circumvent technological protection measures in case right holders fail to ensure that the use privilege for scientific research remains effective when technological protection measures are applied;
• declare Article 6(4), subparagraph 4, of the Information Society Directive inapplicable to use for the purposes of scientific research, as already done in Article 7(2) of the Directive on Copyright in the Digital Single Market;
• declare any contractual provision contrary to the use privilege for scientific research unenforceable, as already stated in Article 7(1) of the Directive on Copyright in the Digital Single Market.

In contrast to the current, optional version of Article 5(3)(a) in the Information Society Directive, this more flexible and more robust exemption of use for scientific research should constitute a mandatory “shall” provision to ensure a harmonised application across Member States and comparable conditions for research teams in different countries.

The proposed more flexible and more robust exemption of research use can be expected to play a crucial role in the realisation of EU open science objectives. As the proposed broadened and strengthened version of Article 5(3)(a) would cover both – the right of making copies for research purposes (reproduction) and the right of sharing these copies
(communication and making available to the public) – the provision has the potential to enable researchers to comply with open access requirements of funding schemes for scientific research, such as Horizon Europe. With the proposed broadened and strengthened provision, copyright protection would impose less constraints on initiatives to make research data, including copyrighted material, available open access.

To attain the described goals – an equal legal position for researchers in line with underlying fundamental rights and less barriers to open access availability of research data – it is advisable to implement the proposed more flexible and more robust use privilege for scientific research not only in the field of copyright and related rights but also in the area of the sui generis database right. Researchers should be able to rely on a corresponding use privileges with a congruent scope in Article 9(b) of the Database Directive.

With regard to non-legislative measures, it is important to note that some of the aforementioned recommendations for legislative measures can also serve as an impulse for non-legislative clarifications and best practice models:

With regard to the overarching research exceptions in Article 5(3)(a) ISD and Article 9(b) DBD, it could be clarified that:

• the requirement of use as an “illustration” only concerns the teaching branch of the use privilege and does not relate to scientific research;
• regardless of the volume of use, scientific research constitutes a “special case” in the sense of the three-step test of Article 5(5) ISD because of the fundamental rights underpinning following from Articles 11(1) and 13 CFR;
• in the assessment of a conflict with a normal exploitation or an unreasonable prejudice to legitimate interests of right holders under Article 5(5) ISD, it is necessary to take benefits into account which right holders, such as academic publishers, derive from the work of researchers and the results of scientific research projects (cf. section 3.1.4);

With regard to the specific TDM exception in Article 3 DSMD and, more specifically, the lawful access guidelines in Recital 14 DSMD, it could be clarified that:

• in the case of subscriptions, the persons attached to a research organisation or cultural heritage institution with the subscription are not the only group of beneficiaries, in respect of which lawful access can be assumed (the relevant sentence in Recital 14 starts with “[f]or instance”). Rightly understood, lawful access should also be assumed with regard to researchers from other organisations or institutions in the case of joint research projects. It should thus be deemed sufficient that one participating institution has lawful access (cf. section 3.3.3);
• Member States should use Article 5(3)(a) ISD as a basis to complement Article 3 DSMD with a further copyright exception that permits the sharing of TDM datasets within research consortia and, for purposes such as research validation, also with the broader academic community. To ensure a harmonised approach, it seems advisable to develop a model provision for TDM dataset sharing that can be implemented in a uniform manner in different national contexts.

Moreover, it seems promising to explore the intersection between open access and related data and metadata initiatives in the academic world, and the need to improve copyright data and data management infrastructures in the creative sector. The interplay has two central aspects:

• on the one hand, an improved copyright data infrastructure makes it easier for researchers to obtain use permissions that are required when statutory use privileges for scientific research are inapplicable. Hence, data improvement initiatives are likely to enhance data availability for research purposes;
• on the other hand, open access obligations in academic funding schemes that include the sharing of datasets and the creation of corresponding, sufficiently rich, standardised and machine-actionable metadata have the potential to support
  data improvement strategies in the creative industries.

Given this interrelation, it seems advisable to develop non-legislative initiatives that pave the way for the injection of copyright-related data and metadata that result from research projects into data improvement processes in the creative sector. In exchange for valuable contributions of researchers to the improvement of copyright data, including the creation of rich metadata, right holders may be willing to offer broader support for academic initiatives that seek to ensure open access to research data that include protected works and (parts of) databases. In particular, this may be an
attractive option for the creative industry if it proves to be possible to draw a boundary between open access data and metadata systems for research purposes and closed data and metadata systems that use metadata strategically as a source of information to enhance the visibility and findability of works, databases and right holders, and create
new and broader licensing opportunities.

1 Articles 11(1) and 13 of the EU Charter of Fundamental Rights.