Policy paper #23 for a general scientific research exception

September 10, 2025

Background

It is the European Union’s stated goal to create a European Research Area (ERA), “a single, borderless market for research, innovation and technology across the EU.” Yet this ambition remains only partially realised. Significant barriers still prevent European researchers from accessing essential research resources remotely and legally sharing them with collaborators across Member States. To turn the “fifth freedom”¹ for research, innovation, knowledge and education into reality, unlock the full potential of European research, and boost European competitiveness, the Commission is expected to propose an ERA Act over the course of the 2024-2029 mandate.² Such legislation should enshrine a general scientific research exception, to address persistent obstacles to access, reuse, and sharing of copyright-protected materials for scientific research purposes.

We have addressed access issues and how to solve them in previous policy papers.³ In this paper, we identify the following issues in the existing copyright framework that make carrying out state-of-the-art research difficult:

The existing scientific research exceptions are not fit-for-purpose for research in the digital environment and research collaboration across borders in the EU.
The non-commercial purpose requirement for scientific research in various parts of the copyright acquis creates further difficulties, especially in the context of collaborations with industry and other public-private partnerships.
Most of the existing scientific research exceptions are easily overridden by contract and choice-of-law agreements.
There are no mechanisms in place to access, without undue delay, research resources that are protected by technological protection measures (TPMs).

To solve these issues, we propose the introduction of a general mandatory scientific research exception, with a cross-border effect, fit for institutional and non-institutional users, that is flexible and technologically neutral and that is adequately protected against overrides.

Here we leave aside any recommendations on how to improve the scientific text and data mining (TDM) exception in Article 3 of the Copyright in the Digital Single Market (CDSM) Directive, which we will address in another, yet to be published paper.

Research uses of copyright-protected resources

Many important research resources are protected by copyright or other exclusive rights. This includes research publications, such as articles in scientific journals and books, as well as literary and journalistic works, works of visual art, music, software, databases, and other materials. Regardless of the discipline, researchers often access, make copies, and share copyright-protected resources. These uses involve various copyright-relevant acts, namely reproduction, distribution and communication to the public (including making available to the public):

Performing research often necessitates the reproduction of resources. At the most basic level, researchers frequently need to copy parts of a book on loan from a library to be able to reuse these resources after having returned the book. But being allowed to copy works is also crucial for technologically advanced research methods. A prime example of this is TDM, i.e. computational analysis of large corpuses of texts, some of which may be copyright-protected. Carrying out this kind of research is only possible if researchers can compile and store copies of these works in a database on their computers to run the analysis.

Conducting research collaboratively further requires either the distribution or the communication to the public (including making available to the public) of resources. Researchers often share resources as well as research results with collaborators, including in other countries. Today, many research projects, especially EU-funded projects, span multiple Member States and may involve partners from outside of the EU. Since not every institution might have access to the same resources, collaborators should be able to access resources remotely and share copies of resources among one another. Moreover, researchers should be able to share research results, including where they involve copyright-protected materials, with other researchers for purposes of verification and replication —this is key to ensuring reliability of research—, as well as for purposes of compliance with open access requirements for scientific research.

The state of European scientific research exceptions

The EU legal framework recognises these research needs only partially. While most EU copyright directives allow Member States to introduce limitations and exceptions to copyright and related rights for purposes of scientific research, the relevant provisions do not go far enough.

The EU copyright framework currently provides for various scientific research exceptions. The InfoSoc Directive (2001), the Database Directive (1996) and the Rental, Lending and Related Rights Directive (2006) all contain optional exceptions that globally refer to scientific research purposes. In addition, the CDSM Directive (2019) contains a more specific mandatory research exception for scientific TDM.

The research exception in Article 5(3)(a) of the InfoSoc Directive addresses research in a broad and general manner.⁴ It does not limit who can use copyright-protected resources for research purposes (covering both institutional and non-institutional research), extends to all copyright-relevant acts (e.g. reproduction, distribution, communication to the public) and it is not confined to any specific form of research, methodology, technology, setting, etc., thus providing sufficient flexibility in the face of technological change. This also applies to the similarly worded exceptions in the Database Directive (Articles 6(2)(b)) and in the Rental, Lending and Related Rights Directive (Article 10(1)(d)).

However, these are “may” provisions, meaning that the Member States are not obliged to implement them, and, if they choose to do so, they may decide not to exhaust the leeway granted by them. For instance, currently, only eight Member States take full advantage of the possibilities offered by Article 5(3)(a) of the InfoSoc Directive, having broad and flexible research exceptions in place.⁵

The TDM exception in Article 3 of the CDSM Directive, by contrast, is implemented in all Member States because it is a “shall” provision, meaning that Member States are required to implement it. However, this provision only covers one specific research activity (i.e. TDM), it only benefits certain users (research organisations and cultural heritage institutions), it does not cover software and, most importantly, it does not extend to all copyright-relevant acts (it does not cover communications to the public, including the making available to the public right).⁶

In sum, the legal framework for scientific research varies considerably across the Union, as a result of Member States being required to implement only an exception for TDM and not exhausting the policy space available to them under the optional research exceptions.

Harmonising the legal landscape for scientific research

This fragmented state of affairs creates legal uncertainty among researchers, promotes inequality on access to knowledge and severely limits research in Europe, particularly in joint cross-border projects. As already noted in the 2008 Commission Green Paper on Copyright in the Knowledge Economy, “[d]ifferent treatment of the same act in different Member States may lead to legal uncertainty with regard to what is permitted under the exception, especially when teaching and research are carried out within a transnational framework.”

The fact that researchers are not able to benefit from the same research rights in every Member State (e.g. eight Member States do not have research exceptions in place that cover the right of communication to the public) and that, when those rights exist, they may be subject to different conditions (e.g. quantity limitations), is challenging for researchers to navigate.⁷ A 2024 survey of researchers demonstrates the chilling effect resulting from this legal complexity. In a significant number of cases, when faced with uncertainties around copyright law, respondents were forced to change the research design or abandon (parts of) projects altogether out of fear of litigation.⁸

A 2024 study commissioned by the European Commission provides ample evidence of the barriers that prevent researchers from fully exercising their right to research.⁹ Our own publication “Nobody puts research in a cage” (2024) collects additional evidence of the barriers researchers face when attempting to reproduce and, in particular, make available resources and the chilling effect created by legal complexity.

We maintain that researchers should not be put in a position where they either have to refrain from a legitimate use or be forced to operate in legal grey zones. Enabling researchers to do their work is not just a goal in itself. Promoting scientific progress and innovation are a precondition to solving Europe’s biggest challenges. There are thus strong considerations for recognising the “right to research” at the level of fundamental rights and enacting robust research exceptions.¹⁰

Making the existing optional scientific research exceptions mandatory would go a long way towards achieving greater harmonisation and providing a more robust protection to researchers in Europe. However, this would not solve all the needs of researchers. Most of those research exceptions are limited to non-commercial purposes, which drastically limits their usability where private research funding or private collaborators are involved in research projects. Some exceptions do not cover acts of communication to the public, preventing researchers in larger consortia from sharing resources with colleagues. On top of that, none of these exceptions are explicitly protected against contractual override. Furthermore, some of those exceptions use wording that raises legal uncertainty. Last but not least, the optional research exceptions that are in place do not cover the entire spectrum of protected subject matter (e.g. they do not apply to software).

A research exception fit for institutional and non-institutional users

To fully realise the right to research, the European legislators should therefore introduce a broad and flexible mandatory exception for scientific research, with horizontal application across all protected subject matter and covering all copyright-relevant acts (namely the right of communication to the public, including the right of making available to the public).¹¹ This exception should address the needs of both institutional researchers and researchers that are outside an institutional context.

When designing a general scientific research exception, EU lawmakers shall bear in mind that “the non-commercial requirement can be a source of legal uncertainty.”¹² Scientific research performed within the framework of academic or other knowledge institutions more and more often involves private funding and collaborations with private partners. Such collaborations are often even required or at least desired by public research funds. The prospect of commercial exploitation of research outputs by an industry partner could potentially violate the “non-commercial purpose” requirement, creating a stumbling block and clogging the research-innovation pipeline in the ERA. Therefore, EU lawmakers should consider abandoning the requirement that the research activity be non-commercial in nature.

Repealing the non-commercial use requirement for research activities is possible as shown by Article 10(1)(d) of the Rental, Lending and Related Rights Directive, which only refers to “use solely for the purpose of teaching or scientific research.” The provision remains subject to the Berne three-step test, which means that permitted uses of works must not conflict with their regular exploitation and must not unnecessarily prejudice the legitimate interests of authors.

The EU lawmakers could follow this model and introduce a general copyright exception for purposes of scientific research, requiring only compliance with the three-step test.¹³ Considering, however, the legal uncertainty arising from the three-step test, such an approach would call for further clarifications as to what constitutes a “special case” in the sense of the three-step test, to avoid placing researchers in a situation where they would need to demonstrate, with respect to each individual research project, compliance with the test.

An alternative approach would be to introduce further requirements depending on who performs the research activity. If at least one non-profit research organization or cultural heritage institution is involved in the research activity, no further requirements would be needed, in line with the approach of Article 3 of the CDSM Directive. If, however, the research is carried out by persons outside an institutional context, including non-profit organisations, citizen researchers or investigative journalists, among others, the right to use copyright-protected resources for scientific research could be subject to the condition that the use is for ends that are not directly commercial.

A general research exception should not be subject to remuneration. This is in line with the current EU acquis and the legal tradition in most Member States: except for a handful of Member States, the optional research exceptions that are implemented at the national level are completely unremunerated.¹⁴ In addition, no Member State requires remuneration under the mandatory scientific TDM exception.

The exception should also apply across borders. The legal fiction for transnational teaching enshrined in Article 5(3) of the CDSM Directive provides a workable model with the following change: when the research use takes place in the context of a joint research activity, it shall be deemed to occur in the Member State where the organisation or individual responsible for coordinating the joint activity is located.

In sum, we support the introduction of a fully-harmonized, mandatory exception, with cross-border effect, that applies horizontally to all exclusive rights and that is not subject to remuneration, allowing the use of works and other protected subject matter for purposes of scientific research, to the extent justified by such purpose, on condition that:

such use is for purposes that are not directly commercial, or
such use takes place under the responsibility of a research organisation or a cultural heritage institution, or, when such use takes place under the responsibility of two or more entities, at least one of such entities is a research organisation or a cultural heritage institution.

Strong protections against overrides

A general research exception would necessarily need to be protected against contractual override. Taking into account that the vast majority of research resources are subject to license agreements, preventing these agreements from overruling the exception would be essential to ensure that researchers can effectively benefit from the rights granted by it.

This would be in line with Article 7(1) of the CDSM Directive, which states that, where a contractual provision is contrary to the scientific TDM exception, the education exception or the preservation exception, such provision shall be “unenforceable.” It would also be consistent with the Directive implementing the Marrakesh Treaty (Article 3(5)), the Software Directive (Article 5(2)), and the Database Directive (Article 15), all of which explicitly exclude the possibility of certain copyright exceptions in those instruments being undermined by contracts.

Ensuring that the new scientific research exception cannot be overridden by contract would, however, not be enough. The EU lawmaker would also need to introduce a protective mechanism under private international law to prevent choice-of-law agreements from circumventing the mandatory exception.

Our publication “Unfair licensing practices: the library experience” (2025) provides evidence that freedom of contract is often exploited by publishers to the detriment of researchers. License agreements with non-EU publishers are often subject to non-EU laws and prohibit uses that are allowed under EU laws, namely the scientific TDM exception in Article 3 of the CDSM Directive.¹⁵ Implementing a private international law protection (e.g. qualifying the exception as an overriding mandatory provision within the meaning of Article 9 of the Rome I Regulation, to set aside the foreign law chosen if it leads to a loss of research rights) seems therefore crucial to target these contractual practices and protect the research policies reflected in the exception.

Lastly, the general research exception would need to be protected against technological override, to ensure that researchers can assert their research rights even where resources are restricted by TPMs.

This would be in line with Article 7(2) of the CDSM Directive, which applies the first, third and fifth subparagraphs of Article 6(4) of the InfoSoc Directive to the scientific TDM exception, the education exception and the preservation exception, ensuring that beneficiaries of such exceptions can seek the technical means to remove TPMs.

Applying these InfoSoc provisions to the new exception would, however, not be sufficient to ensure that beneficiaries of the new mandatory exception can effectively get the means to access and use the TPM-protected resource. Currently, Member States have discretion when deciding which mechanisms to put in place to allow beneficiaries of copyright exceptions to get access to TPM-protected subject matter, but there are not always clear procedures in place at the national level. In 2016, a study commissioned by the European Union identified such mechanisms only in eight Member States, and in many cases such mechanisms were rather burdensome.¹⁶

Therefore, when creating a new mandatory research exception, the EU lawmaker should set clear mechanisms for giving researchers the technical means to access and use TPM-protected content without undue delay. A rapid-response, transparent, administrative (i.e. not judicial) procedure would be highly recommended. The Slovenian model, which requires access to be granted within a period of no longer than 72 hours following a request by the beneficiaries of the scientific TDM exception, constitutes an adequate model.¹⁷

Conclusions and Recommendations

The research exceptions in the EU copyright acquis are too limited in scope, not sufficiently harmonised, and display additional conceptual issues, preventing the realisation of the right to research in the EU. Researchers are unable to use all protected subject matter in the same way across the Union, share resources with collaborators in other Member States, and face significant legal uncertainty when engaging in public-private partnerships. We thus urge the European co-legislators to reform the framework for scientific research by introducing a mandatory, open and flexible, non-remunerated research exception that applies horizontally to all protected subject matter.

This exception should serve the needs of both institutional research (which often involves private funding and collaborations with private partners) and researchers outside of an institutional context. The EU lawmakers should further ensure that the exception cannot be overridden by contract or circumvented by choice-of-law agreements, and that there are mechanisms in place to access resources protected by technological protection measures (TPMs). Ideally, these changes should be introduced as part of an ERA Act or an even more comprehensive legal package overhauling the rights of knowledge institutions in the digital age, a Digital Knowledge Act.

Recommendation 1

Introduce a general research exception fit for institutional and non-institutional users

We call on the EU legislators to introduce a fully-harmonized, mandatory exception, with cross-border effect, that applies horizontally to all exclusive rights and that is not subject to remuneration, allowing the use of works and other protected subject matter for purposes of scientific research, to the extent justified by such purpose, on condition that:

a) such use is for purposes that are not directly commercial, or
b) such use takes place under the responsibility of a research organisation or a cultural heritage institution, or, when such use takes place under the responsibility of two or more entities, at least one of such entities is a research organisation or a cultural heritage institution.

Recommendation 2

Introduce strong protections against overrides

We call on the EU legislators to protect the new research exception from being overridden by contract and circumvented by choice-of-law agreements. In addition to making a contractual provision contrary to the exception unenforceable, the EU law should foresee a protective mechanism under private international law to set aside the law applicable to the contract if it leads to a loss or rights under the research exception.

We further call on the EU legislators to ensure that uses under the research exception are in no way restricted by TPMs attached to research resources. A rapid-response, transparent, administrative procedure should be set in the EU law to ensure that researchers are provided the technical means to access TPM-protected resources without undue delay.

Endnotes

See Enrico Letta’s report to the European Commission.
See Commission president Ursula von der Leyen’s mission letter to Ekaterina Zaharieva.
Access to research resources is essential and should be considered alongside reform of the research exception. In our Policy paper #17, we propose the introduction of a secondary publishing obligation to promote access to publicly funded research. We also propose the introduction of a right to license or own digital materials (Policy paper #21) and an e-lending exception (Policy paper #19) to facilitate access to all kinds of digital resources through knowledge institutions, including for purposes of research.
Article 5(3)(a) of the InfoSoc Directive allows Member States to introduce exceptions or limitations to the right of reproduction and the right of communication of the public in the case of “use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.”
HR, CZ, EE, LV, LT, LU, RO, SK. For a more detailed analysis, see Teresa Nobre’s The Post-DSM Copyright Report: research rights on the COMMUNIA blog.
While Article 3 of the CDSM Directive does not require Member States to grant researchers the right to share research resources and research results, five Member States have expanded their scientific TDM exceptions to include such rights (AT, DE, HU, IT, SI). These Member States have used the policy space available to them under Article 25 of the CDSM Directive, which makes it clear that Member States can adopt or maintain in force scientific research exceptions that are broader in scope than the TDM exception in Article 3, as long as they are compatible with Article 5(3)(a) of the InfoSoc Directive.
AT, BG, CZ, FI, GR, NL, PT, SE (see The Post-DSM Copyright Report: research rights).
Aufderheide, Patricia and Butler, Brandon and Anastácio, Kimberly (2024), The Chilling Effects of Obstacles to Accessing, Using, and Sharing In-copyright Data for Quantitative Research, Information & Culture.
European Commission: Directorate-General for Research and Innovation et al. (2024), Improving access to and reuse of research results, publications and data for scientific purposes, Publications Office of the European Union, 2024.
A right to research can be derived from the EU Charter of Fundamental Rights, specifically from the guarantee of freedom of expression and information (Article 11(1)) and the freedom of arts and sciences (Article 13). See Christophe Geiger and Bernd Justin Jütte (2023), Conceptualizing A “Right to Research” and Its Implications for Copyright Law: An International and European Perspective, American University International Law Review 38(1), pp. 1-86.
European researchers support this. According to the above-mentioned European Commission study, 48% of the respondents from the research community strongly and 34% rather favoured the introduction of an open norm that generally permits all uses of copyright-protected resources for research purposes (p. 149).
See the above-mentioned European Commission study (p. 198).
See An EU Copyright Framework for Research: Opinion of the European Copyright Society (p. 16).
See the above-mentioned European Commission study (p. 66-67). The only Member States that foresee remuneration for some research uses are BE, FI, NL, AT and SE. In all of those countries, the remunerated exception covers both research and education uses in the same provision, without differentiation, and mostly focuses on educational activities rather than on research. This might explain why these research uses are subject to remuneration in these five Member States, while elsewhere in the EU they are unremunerated.
These trends were also noted in Ana Lazarova’s analysis of 100 licenses between information vendors, including publishers and scientific databases, on the one hand, and libraries, on the other (see Libraries, Licenses, Limitations: an Empirical Insight into the Contractual Conditions Regulating TDM for Research).
A court procedure in DE, ES and SE; a mediation or an administrative procedure in FR, IT, LT, LV and SI.
See Section 57b (4), Copyright and Neighbouring Rights Law (Zakon o avtorski in sorodnih pravicah (ZASP-I)).