The European Union is currently experiencing epochal shifts. They range from new threats of armed conflicts, societal inequality, environmental threats, and a stark downturn in the transatlantic relationships. Addressing (at least some of) these challenges requires creative and innovative answers. Key to addressing these challenges is harnessing the innovation potential of the ‘old continent’ by rediscovering the intellectual roots of an open, free, and progressive society and translating them into the normative fabric of the EU’s Single Market. With the advent of digitisation, copyright law has generated chilling effects on innovation and creativity. Removing them is essential for exploiting Europe’s potential for creativity and innovation.

Copyright is not necessarily the obvious lever that comes to mind when tackling global problems. However, this particular set of rules has the potential to hamper innovation, creativity, and human and societal development, although it is meant – and should accordingly be designed – to promote them. Unfortunately, copyright in the EU has developed into somewhat of a stumbling stone (at least) since the adoption of the 2001 Directive on Copyright in the Information Society. Especially when copyright becomes a strategic aspect of transatlantic relations, its importance cannot be further denied. By being able to determine the conditions for access to information – of all sorts –, copyright is a powerful and often problematic tool. Rebalancing certain rules and mechanisms of copyright law will be essential for empowering educators and students and enabling researchers to address today’s and tomorrow’s challenges.

This contribution outlines some of the barriers copyright law poses to education and research and proposes a set of non-exhaustive principles that should guide the rebalancing of substantive copyright law. These principles are based on constitutional imperatives that are rooted in the aims and objectives of the European Union and build on copyright’s conceptualisation as an access right, rather than one that restricts access to information.

Copyright’s restrictive effects

Copyright law determines how information is created, shared, and used, but it does not protect the information itself. It protects the medium that carries the information. The subject matter of protection under copyright law is expression – and sometimes mere fixation – as opposed to ideas or information. Copyright grants exclusive rights for literary, dramatic, musical, and artistic creativity, for an “author’s own intellectual creation”, which is not knowledge itself but how knowledge is ‘packaged’. The packaging – in copyright terminology – is concrete expression, and this is what copyright law protects. However, information can only be communicated, shared, and transmitted in packaged form. Copyright-like protection is also assigned to other types of subject matter, such as sui generis databases and other related rights. The exclusive rights granted under copyright law are therefore powerful tools to restrict access to information. The different rights given to authors and rightsholders complicate access to information and knowledge because they enable controlling the media that carry information. However, access to information of different types is essential for innovation, scientific and technological progress and more generally for creative solutions against local, regional and global challenges. Therefore, just like other production factors, information must move freely within the EU’s Single Market.

Copyright as a barrier to a fifth Freedom

In her political guidelines, Ursula von der Leyen, the current President of the European Commission, recognised “world-class researchers and universities” as key assets for European competitiveness. To harness the potential of these assets and to leverage strategic advantages to close the competitiveness gap at the global level vis-à-vis other economies, the EU must educate and innovate, build a strong, flexible, and innovative workforce that is able to drive innovation and competitiveness. Without the free flow of information and unrestricted access to knowledge for research and education, the innovation potential of the European Research Area and, more generally, that of the Union, will be difficult to realise. This concern is echoed in the 2024 Letta-Report which calls for exploring a new dimension of the European Single Market, namely that of a “fifth Freedom to the existing four, to enhance research, innovation and education in the Single Market [which] entails embedding research and innovation drivers at the core of the Single Market, thereby fostering an ecosystem where knowledge diffusion propels both economic vitality, societal advancement and cultural enlightenment.”

This fifth Freedom would include not only the free movement of researchers. Research data, research outputs, and research results must be able to move freely within the EU’s Single Market. Similar to the other fundamental freedoms – though not (yet) expressly defined as such –, freedom to access information would become a constitutional value. Equally, education resources must be part of this fifth Freedom, as a means to achieve other constitutional aspirations of the Union. The need to provide world-class, diverse education and equal opportunities for all learners, provides compelling arguments that weigh against measures that restrict the free flow of information and knowledge resources.

Research and education as informational fundamental rights

The free-movement analogy is, however, only one convincing argument for a more flexible, access-based copyright framework. Even in entirely internal situations, copyright poses significant barriers to the use of information for educational and research purposes. These rules are largely harmonised by EU law and therefore do not fully escape the constitutional imperatives of the EU. Accessing information, as an expression of a fundamental right, is at its very core protected by the right to freedom of expression, a right to receive and impart information, and helps to achieve some of the expressly formulated aims and objectives of the Union. Even more fundamentally, while education is recognised as a fundamental or human right, research is not expressly recognised. Its scope can be constructed as a composite of other recognised rights, such as the right to freedom of expression (e.g., Art. 11 EUCFR), but also the right to enjoy the benefits of scientific progress and its applications (Art. 15(1)(b) ICESCR).

Whilst copyright is not the only barrier to creativity and innovation, it poses critical barriers for researchers and educators, individually and for institutions, in the European (Digital) Single Market. Removing these barriers is essential to create and educate a qualified workforce that can adapt to technological change and drive innovation itself – and therefore also for bolstering Europe’s potential for critical and cutting-edge industries. A healthy innovation ecosystem is, not least, essential for promoting and realising the EU’s aims and objectives, as laid down in Art. 3(3) TEU, including “an internal market [that works] for the sustainable development of Europe [and which promotes] scientific and technological advance.” 

Copyright, education, and research

Three factors in particular contribute to the increased intensity of control rightsholders can exercise over protected works, and therefore, the use of the information contained in these works.

First, digitisation, with all its benefits, enables rightsholders to extend the sphere of control over works. Compared to analogue scenarios, the effects of copyright’s exclusive rights, especially the right of reproduction and communication to the public, are much more severe and equip rightsholders with a high degree of control over information and knowledge.

Second, the multiplication of access sources increases access costs for individual and institutional users. The purchase of physically embodied digital media, such as books, magazines, and audio-visual media, creates one-off acquisition costs; access to digitised media, however, creates recurring costs. Subscription models for scientific or educational resources require periodic payments to maintain access, and access modalities are furthermore subject to private ordering through terms and conditions. Accessing a balanced mix of (essential) resources further increases costs and may lead to losing access if subscription fees become unaffordable for individual or institutional users. Specifically for universities and libraries, these costs and consequential uncertainties are not insignificant.

Third, the commodification of information resources, especially in the scientific sector, drives prices and multiplies access costs for users and knowledge institutions. Research outputs, as well as educational material, are licensed by their authors to knowledge intermediaries, such as publishers, who then set the price and modalities for access. For example, publishers resort to practices like bundling and metering to maximise profits. This makes it difficult for knowledge institutions to provide their users with the best possible offers, but it also divests producers of information of control over their productions. For example, a scientific or educational book, for which the author has granted an exclusive licence to a publisher, cannot be shared by the author without violating the terms of the licence. Moreover, it is the publisher that decides when and if reprints or publications in other venues are permitted. If nothing else, contractual layers on the use of information resources, which even legal experts struggle to negotiate, lead to legal uncertainty and result in chilling effects for research and related activities.

Principles and objectives for European education and research (copyright)

Promoting research and education in a European Single Market that is home to a world-leading European Research Area requires addressing these structural deficits. The fact that these congruent spaces are still governed by national, only partially harmonised copyright laws, is one of the aspects that require legislative intervention. First and foremost, more effective harmonisation is an imperative for removing barriers to education and research. These harmonisation efforts must aim at removing inherent conflicts between exclusivity and access, starting with designing broad and clear exceptions for use in the context of research and education activities.

The principles and main objectives of a copyright framework that enables and facilitates education and research will be given more shape by concrete proposals in further contributions to this symposium. They are based on principles such as openness, flexibility, and individual informational autonomy.

As a general rule, information should be freely accessible when using and sharing it serves the promotion of research and education, as drivers of innovation and creativity. Reasonable and proportionate restrictions to the principle of openness are, by its very nature, established by copyright law. For example, it is not unreasonable that authors of educational textbooks or scientific works have the possibility to generate revenue from their works. However, these exclusive rights, and the subject matter of copyright more generally, do not guarantee maximum economic profits to rightsholders (see FAPL/Murphy, para. 108). Certainly, pure economic interests should not lead to a monopolisation of information, thereby jeopardising the purpose of copyright and its underlying social contract. When openness is not built into copyright, copyright law must provide exceptions to the exclusivity paradigm that can be flexibly adapted to new methodologies and research techniques, specifically those that are enabled by technological advances. But it also requires other tools and mechanisms to ensure accessibility of essential information.

Individuals who produce knowledge must maintain a degree of control over this information and the works in which it is contained. Not for the purpose of restrictive control, but for the purpose of encouraging the self-determined sharing of essential information. Reducing the extent of control of knowledge intermediaries, such as publishers, over research outputs, particularly such outputs supported by public funding, is vital to enable scientific communication and the type of knowledge transfer that drives innovation.

This principle of informational autonomy must be positioned in a multi-territorial (Digital) Single Market. Mechanisms that enable the cross-border sharing and exchange of information and knowledge must be central to efforts to reform existing copyright rules. The current rules of the EU copyright acquis already contain good examples, but these do require horizontal adoption to promote education, research and, as the ultimate goal, innovation and creativity.

Finally, knowledge institutions, as access enablers, must be empowered to build diverse, resilient, and sustainable repositories that learners, teachers, and researchers alike can tap into. To fulfil their public service missions, libraries must be able to obtain academic works necessary to build stable and diverse knowledge repositories to empower learners on a non-discriminatory basis and to provide researchers with resources that can be accessed and used without significant technological and contractual limitations. Under certain circumstances, the public interest in building and maintaining knowledge repositories must also justify positive obligations to be imposed on rightsholders to enable access to knowledge resources.

Building a competitive and innovation-friendly Digital Single Market requires recognising a fifth Freedom of informational mobility. For that purpose, copyright must adapt to allow information to be used, consumed, analysed, and shared within educational and research communities, by removing restrictions on its free movement across EU Member States. And again, the old market logic can serve as an inspiration. Control should not be the general rule, and restrictions on the free movement of knowledge and information require convincing and proportionate arguments.