Towards a European Research Freedom Act: A Reform Agenda for Research Exceptions in the EU Copyright Acquis

This article explores the impact of EU copyright, related rights and sui generis database protection on the use of protected knowledge resources in scientific research (Sect. 1). We take a fundamental rights approach, focusing on the need to strike a fair balance between, on the one hand, copyright as an exponent of the right to property and, on the other hand, freedom of expression, freedom of information, and the freedom of the arts and sciences (Sect. 2). Surveying the current copyright/research interface reveals that the existing legal framework lacks adequate mechanisms for reconciling the divergent interests of copyright holders and researchers. Structural deficiencies are identified, such as fragmented and overly restrictive research exceptions, opaque lawful access provisions, outdated non-commercial use requirements, legal uncertainty arising from the three-step test in the EU copyright acquis, obstacles created by the protection of paywalls and other technological measures, and the risk of contracts overriding statutory research freedoms (Sect. 3). Empirical data confirm that access barriers, use restrictions, and the lack of harmonised rules for transnational research collaborations impede the work of researchers in the EU (Sect. 3). Against this backdrop, we propose legislative reform, in particular the introduction of a mandatory, open-ended research exemption to ensure reliable breathing space for scientific research across EU Member States, the clarification of lawful access criteria, a more flexible approach to public-private partnerships, and additional rules to support modern research methods, such as text and data mining. This reform agenda could form part of a broader European Research Freedom Act, aimed at establishing a balanced legal framework: an updated EU acquis that safeguards existing rights, such as copyright and sui generis database rights, while fostering innovation, collaboration, and scientific progress (Sect. 4). As a further step in the right direction, EU legislation should harmonise secondary publication rights, enabling researchers to provide open access to research results. However, this aspect of the reform agenda is beyond the scope of the present inquiry and will therefore be the focus of another study.