The regulatory complexity in the Data and Digital Legislation needs to be addressed as it causes higher compliance costs, which affect the scientific community.
In mid-May 2024, the European Commission published a study with the title `Improving access to and reuse of research results, publications and data for scientific purposes’. It aims to contribute to the ERA Action 2 under the ERA Policy Agenda 2022-2024, to provide an EU framework for copyright and data fit for research, promoting a single, borderless market for research, innovation, and technology across the EU.
The study uses an evidence-based approach and includes literature reviews, surveys, and interviews with legal experts and stakeholders. It analyses the effects of the EU legislative framework on research and innovation with a focus on relevant provisions in EU copyright (namely, the Information Society Directive, the Copyright in the Digital Market Directive, the Software Directive and the Database Directive, in conjunction with the research-related provisions of the Data Act Proposal) as well as data and digital legislations (including the Open Data Directive, the Data Governance Act, the Data Act, the Digital Services Act, the Digital Markets Act, and the Artificial Intelligence Act).
Besides, it identifies current barriers to accessing and reusing publicly funded research under the regulatory frameworks. It proposes legislative and non-legislative measures to improve the accessibility and reusability of research outputs. In this context, the study assessed the possibility of introducing EU-wide Secondary Publication Rights (SPRs) and proposes different solutions, for instance, i. including a broad range of scientific output, addressing SPR limitation regimes in the EU, which currently focus mainly on journal articles; ii. limiting SPRs since a restrictive approach can cause challenges due to current funding arrangements involving often public-private partnerships; iii. expanding the scope of SPR regimes to cover the version of record (VoR) of research outputs rather than limiting them to the author accepted manuscript (AAM) or earlier versions; iv. minimising embargo periods; v. broader application of SPRs to allow open access publication covering all types of uses, and vi. developing umbrella licensing and remuneration schemes as an alternative to SPRs to ensure long-term open access to research outputs.
Regarding Copyright and Related Rights (CRR), it also includes different options, namely, i. open-ended and flexible research exceptions to enhance the legal framework of EU copyright law in support of scientific research; ii. outdated provisions of non-commercial purpose in the Information Society Directive and the Database Directive and the applicability of copyright exceptions when a research project includes industry funding or public-private partnerships; iii. guidance relating to the Text and Data Mining provisions and the Directive on Copyright in the Digital Single Market to establish a more uniform approach across Member States, and iv. potential of umbrella licensing solutions and remuneration regimes to enhance access to knowledge resources for research purposes.
Furthermore, the study draws conclusions and proposes or offers recommendations concerning the Data and Digital Legislation (DDL) and the European Open Science Cloud, assessing how the research ecosystem, particularly researchers and research organisations, are impacted by the recent adoption of EU data and digital legislation.
In this sense, the study includes specific key findings and recommendations regarding different instruments, for instance, the Open Data Directive, the Data Governance Act, the Digital Services Act, the Digital Markets Act, the Data Act, Artificial Intelligence Act (proposal), and the European Open Science Cloud, but as overarching recommendations to law and policymakers the following items can be highlighted:
- In the context that the EU landscape of EU DDL with relevance for research activities is becoming more and more complex, there is a need for more consistency across the different legislative interventions. Besides, scientific research in EU legislation and policymaking should be streamlined. Moreover, regular monitoring exercises should be established to identify researchers’ and RPOs’ ability to reap benefits from the EU DDL, and the challenges encountered with its compliance.
- Considering that different data access and reuse regimes create a complex regulatory system risking overburdening researchers and research organisations with compliance costs, a further coordination should be established among the indicated DDL instruments to consolidating some of the most outstanding inconsistencies. Besides, a coordinated, homogeneous and horizontal set of data access and reuse provisions for scientific research should be foreseen. Additionally, scientific research should be the precise policy and regulatory objective of provisions relating to scientific research, not simply a tool employed to achieve different goals.
- Finally, it has to be ensured that EU data and digital law align with values that underpin academic freedom and adherence to ethical research standards.