On the 6th of March 2024, we were delighted to welcome a full house at our “Unlocking Knowledge Conference” at Town Hall Europe. At this event, we asked academics, civil society representatives and EU policymakers about the issues knowledge institutions and researchers still face when accessing and using copyrighted materials in their activities, particularly in their digital activities. COMMUNIA defends that the introduction of a targeted legislative instrument, a Digital Knowledge Act for Europe, covering the needs of knowledge institutions in the digital environment, would be the way forward for aligning and updating the legal framework for European research and other public interest activities. If you were unable to make it to the event or would like to rewatch, the recording is now available.
Panel on legal uncertainty and exposure to liability
Teresa Hackett (EIFL) moderated the first panel on legal uncertainty and exposure to liability when working with copyrighted materials. Martin Senftleben (Professor, University of Amsterdam) kicked off the panel by questioning whether the present EU legal framework is sufficiently broad for all contemporary research activities. He described the sources of legal uncertainty in the current legal framework and explained how the application of the three-step test, with its open-ended norms subject to the CJEU interpretation, gives rise to a liability risk for users. To counterbalance this risk, he highlighted that in the CJEU jurisprudence the subjective knowledge/intention of the user have been factored in the equation. He also referred to the liability limitations that exist in some civil law systems in the Americas and in the U.S. (where damages are capped when the user acted in good faith), as a potential policy mechanism that can be explored in Europe to address the liability risk.
Annabelle Shaw (British Film Institute) provided some insight on the issues which collection managing institutions face on a day-to-day basis and made the point that smaller institutions in particular lack the legal framework to make them confident enough to make their collections accessible without fear of litigation.
Michael Arentoft (Head of Unit, European Commission DG RTD.A.4) reiterated that open science is fundamental to the EU and it is a priority action point in the European Research Area (ERA) Policy Agenda, noting the link between the European Research Area and the free circulation of knowledge in the Treaty on the Functioning of the EU (see Article 179). He highlighted the need for a system for disseminating findings and data and stated that we should take seriously the opportunity cost we are already incurring by not making datasets FAIR. He further explained some of the policy options explored in the study launched in the context of Action 2 of ERA. These options include the introduction of a general research exception and of a EU-wide secondary publication right. As a next step after the publication of the Commission’s upcoming study, the Commission will have to clarify which recommendations will lead to legislative measures and which ones to non-legislative measures. Responding to the question whether legislative measures should take the form of a regulation addressing the needs of researchers, Arentoft remarked that this would depend on the policy motivation. If they determine that there is a need for sector specific legislation, then this could take the form of a single act or a more targeted intervention, such as a secondary publication right.
Panel on obstacles to use digital formats, due to refusals to license by rightholders
Teresa Nobre (COMMUNIA) moderated the second panel on obstacles to use digital formats, due to refusals to license by rightholders, which started with a presentation of the preliminary findings of a study on this subject, commissioned by COMMUNIA and the IFLA Foundation to Christophe Geiger (Professor, Luiss Guido Carli University) and Bernd Justin Jütte (Assistant Professor, University College Dublin). Bernd Justin Jütte reminded the audience that current mechanisms to enforce users rights are insufficient and often ineffective, as right holders can still instrumentalize their exclusive rights and apply distribution (or access) strategies to prevent the proper exercise of users rights. He defended that copyright must establish positive obligations for right holders to provide access for specific purposes, arguing that an obligation to grant a specific license to enable a specific use under an exception can be derived from the ratios of the relevant exceptions.
Stephen Wyber (IFLA) presented some European examples of libraries facing refusals to license (or to license under reasonable pricing and conditions) digital materials for e-lending purposes. He encouraged us to think that the shift to digital could be seen as deregulation by stealth, urging policymakers to come up with a legislative agenda to make sure that the market as a whole also works for knowledge institutions.
MEP Karen Melchior (Renew Europe) talked about the changing role of public libraries in our current increasingly digital society. She noted that in Denmark publishers are inhibiting this transformation by not providing access to digital books at the same rate as physical ones. She warned us that, in the absence of appropriate changes to the legal framework, we might not see the expansion of access to knowledge that this digital revolution promises, and encouraged the audience to not let rights holders hijack the conversation.
A Digital Knowledge Act for Europe
In his closing remarks Felix Reda (former MEP and COMMUNIA member) made an argument for a unified act to support European research rather than surgical changes to existing legislation. Looking back on his 10 years of experience working in Parliament and civil society, he remarked that while he was sometimes able to add provisions for researchers (in case of the Digital Services Act) or damage control where necessary (Art. 17 of the EU Copyright Directive would originally have applied to University research repositories), the needs of researchers was never the starting point for any of these legislations. He reminded the audience that while universities are under pressure to operate more and more under market principles, they thus far haven’t gotten the same support to be competitive by removing bureaucratic hurdles as classical businesses have had in the past. Reda is convinced that we need a Digital Knowledge Act and asked the question: “Do we want all this public funding to be spent on actual knowledge production or on compliance with a very complicated legal mechanism?”
