The Commission proposes a Council Recommendation to strengthen knowledge valorisation – and presents two reports on impacts of data regulation on research.
On 9 August, the European Commission (EC) adopted a proposal for a “Council Recommendation on the guiding principles for knowledge valorisation”. With this proposal, the EC aims to improve the social and economic use and value of science by better supporting the transformation of data and research results into tangible products and solutions. The EC hopes that the Council Recommendation “will align policy principles and measures for national, regional and local policy makers to maximise the transformation of research and innovation (R&I) results into solutions that benefit society.” The proposal is in line with the efforts for a new European Research Area (ERA) and constitutes an important action of the ERA Policy Agenda 2022-2024 (see SwissCore article). The guiding principles for knowledge valorisation will support the EU’s updated Industrial Strategy and therefore the EU’s global competitiveness. A faster and broader valorisation of R&I is indeed a prerequisite for advancing the technology-dependent priorities of the EC to accelerate the green and the digital transitions (see SwissCore article). The EC’s proposal stresses that “it is estimated that half of the global reductions in CO2 emissions by 2050 will have to come from technologies that are currently at the demonstration or prototype phases”. Furthermore, the EC in its proposal concludes that the COVID-19 pandemic demonstrated the importance of better and faster R&I knowledge valorisation. While the need for improved knowledge valorisation is due to major strategic challenges the EU is facing, the Commission views also the solution in a comprehensive approach.
As mentioned in the EC’s proposal and already in the respective ERA action, the new guiding principles for knowledge valorisation will be supported by two Codes of Practice. These will provide more detailed guidance for R&I actors on the implementation of the upcoming Council Recommendation: A Code of Practice on the smart use of intellectual property and a Code of Practice for researchers on standardisation. The new guidelines will replace the Commission Recommendation of 2008. The Commission proposal for a Council Recommendation intends to involve all actors in the R&I ecosystem and their knowledge assets. The proposed guiding principles for knowledge valorisation identify a need for action in the following areas: Research and innovation policy, skills and capacities, systemic incentives, intellectual asset management, public funding schemes, peer learning, metrics, and monitoring and evaluation. The EC hopes to improve knowledge valorisation by requiring organisations that are involved in research and innovation to manage intellectual assets in a broad sense, including those that can be legally protected, such as patents, as well as those that can be used in concrete valorisation activities, like data, prototypes, software and others. The EC’s proposal also includes a focus on management strategies and on skills needed to make use of R&I knowledge.
It is foreseen that the Council will discuss the EC proposal and adopt the Council Recommendation on knowledge valorisation later in 2022, still under the Czech Presidency.
On 1 August, the EC published two studies that analyse how the EU’s increasingly complex regulatory environment on data affects science. One study focuses on the Open Data Directive, the Data Governance Act, and the Data Act and their possible impact on research, while the other analysis looks into the Digital Services Act (DSA) and the Digital Markets Act (DMA) and how they might affect research. It is relevant to note that the research for both studies was conducted earlier in 2022 and therefore at a time when the legislative procedures on the DSA, the DMA, the Data Governance Act, and the Data Act were still ongoing. The studies therefore take as the main basis the EC’s legislative proposals. References to the positions of the European Parliament (EP) and the Council are based on the latest versions that were available at the time of finalising the studies. However, while the different regulations progressed since, have been approved by EP and Council, like in the case of the DMA, or even already came into force, like the Data Governance Act, many implementation details nevertheless remain open. In the case of the first aforementioned study, the EC finds that “there will be additional formal and non-binding kinds of rulemaking and standard setting at the EU level in many areas, e.g. around standard contractual clauses for data sharing and use, requirements for data intermediation services and data altruism organisations, interoperability requirements for cloud services and data spaces.” Thus, in line with the reaction by a large coalition of science and education organisations in April, when a compromise between EP and Council on the DSA and the DMA emerged (see SwissCore article), it continues to make sense to advocate for the science and education communities’ interests, also in the case of the Data Directive, the Data Governance Act, and the Data Act. The study writes in the case of regulation affecting the European Open Science Cloud (EOSC): “Just how much this will facilitate the realisation and operation of EOSC will depend on how effectively the needs of research stakeholders are accommodated in these processes.” Furthermore, the study stresses that the relationship between EU law and the laws of other jurisdictions will be an important point of attention for the future as well. Nevertheless, the study emphasises that the different regulatory acts together create a complex legal framework. Also for “research performing organisations, the open data directive and the data governance act final compromise text bring some legal uncertainty, notably because functions of public universities (education, research, library) are subjected to different rules.”
In the case of the DSA, that will be discussed again by Council in September, the respective study finds that the obligations imposed on the intermediate service providers in the proposal for the DSA are not well-suited for researchers and research stakeholders’ operations, which “may be obliged to follow constitutional principles regarding storing documents received, giving access to public data according to constitutional principles as well as under the Open Data Directive and the Data Governance Act”. The study concludes that universities and research organisations face legal uncertainty when being considered as service providers under the proposed DSA. The act may therefore have an impact on research institutions, repositories and researchers even though the proposed DSA was drafted with economic services in mind. Different provisions in the act “may create burdens for the repositories, universities and research institutions that fall under the definition of platforms. These obligations will increase costs.” In case of actions required due to regulations, if for instance a paper or research data would have to be removed from the database, this “can pose problems in relation to fundamental rights benefitting researchers”, the report stresses.
Another topic that the study explored was whether researchers had the right to conduct research and access data – this was not taken in consideration in the proposals for the DSA and the DMA. Thus, according to the study, the DSA “could be developed further, giving researchers a right to conduct research on large platforms. For example, platforms with infrastructure type services should generally be available and open to and for research.” The study concludes that the shortcomings of the DSA could in the future call for a separate regulation covering research organisations while limiting the application of the DSA for the science area.