The European educational, research and cultural heritage institutions – or knowledge institutions for short – face significant barriers to transition their practices into the digital environment. Despite playing a fundamental role in supporting the exercise of rights such as education, scientific freedom, access to information, and participation in cultural life, these institutions are peripheral to the European Union’s digital legislative agenda. None of the ambitious legislative acts addressing the digital and data-driven economy that the European Union passed in recent years have these institutions as their primary regulatory intent. The civil society proposal for a Digital Knowledge Act (DKA) emerges as a response to this regulatory blind spot.

The DKA seeks to introduce a single legal framework for the digital activities and services offered by knowledge institutions. Such an EU-wide intervention could remove fragmentation in key areas of copyright and contractual fairness, areas where these institutions face serious hurdles. However, due to its cross-sectoral nature, such an act potentially raises conflicts of legal basis for Union action and can result in inter-institutional disputes. This blog post argues that these challenges to the act’s viability can be navigated, showing that a broad policy intervention focusing on the public interest mission of knowledge institutions and on the realisation of the “fifth” Freedom is possible.

What’s the gravitational centre of the Digital Knowledge Act?

The DKA aims at addressing persisting obstacles that affect knowledge institutions’ ability to access and use digital formats, to develop an adequate digital offering and to collaborate across borders. These difficulties place knowledge institutions increasingly at risk of not fulfilling their mission in the digital environment, and result largely from the fragmented state of most EU copyright exceptions and an almost total reliance on licensing for access to digital formats. This blog series contributes to advancing policy solutions to address some of these obstacles, ranging from harmonisation of the copyright framework for research activities and e-lending services to the introduction of protective mechanisms against contractual overrides of those measures.

The DKA – as envisioned by the civil society – brings those policy solutions under a single horizontal intervention, whose primary policy contribution is to target areas where legal fragmentation hinders the internal market and where harmonisation would better achieve the objective of ensuring that digital access to knowledge across borders and institutions is not undermined by legal uncertainty or regulatory divergence. From this perspective, the DKA can be seen as a measure aimed at furthering the Union’s goals in the creation of a Digital Single Market and the advancement of a single European Research Area (ERA). This gives rise to the question as to which objective – if any – is the act’s predominant purpose.

Navigating multiple policy objectives

The choice of a legal basis for the Union’s action “is a politically charged issue”, since it determines the legislative procedure and, thus, the rights of participation in the lawmaking process. However, choosing the correct legal basis is not always easy. There are multiple legal bases and the delimitation between them is not always clear. Furthermore, a proposed measure can fall under two or more legal bases.

The DKA’s policy proposals lie at the intersection of different competence domains. While the main substantive area touched by the DKA proposal is copyright – which falls under the internal market competence (Article 114 TFEU) – certain copyright measures are aimed at supporting the ERA (e.g., the introduction of a right to republish publicly funded outputs in open access). This suggests the need to consider whether this legislative intervention would also call for recourse to Article 182(5) TFEU. Furthermore, the proposed act may incidentally pursue objectives falling under Article 81(2) TFEU, when/if introducing mechanisms to protect its copyright measures against choice-of-law agreements.

The internal market competence constitutes one of the horizontal competences in the Treaties, which grants the EU an extensive mandate to approximate laws. Article 114 TFEU has been widely used throughout the decades for a variety of measures, and it is the legal foundation of EU copyright law. The role of this provision in regulating the Digital Single Market is not, however, without criticism. Engel and Zemskova point out that “the scope of this provision is delimited by the existence of more special legal bases available in the treaties for a proposed measure”, warning that there are other provisions that may be more suitable as a legal basis in the Digital Single Market.

In the case of DKA, the internal market seems suitable as a legal foundation. However, there is a research and innovation angle that also seems essential to the intervention. After all, the proposals advanced in the DKA respond to a large extent to the Commission’s ambition to create a “single, borderless market for research, innovation and technology across the EU”. So the question remains: is the internal market competence the gravitational centre of the DKA and the research objectives merely incidental to it? If we respond affirmatively, the DKA would need to be based on a single predominant legal basis (e.g., C‑137/12, para. 53), Article 114 TFEU. If, however, we consider that the advancement of a single ERA is a directly compared objective to the internal market harmonisation, we would need to assess whether a dual legal basis is permitted.

The use of dual or multiple legal bases for an EU legislative measure is permissible only where the different components of the act are inseparably linked and provided that the procedures are not incompatible (e.g., C-130/10, para. 44 and 45). Fragmentation in the implementation of optional copyright exceptions, legal uncertainty in digital and cross-border activities, and contractual practices that prevent the enjoyment of copyright exceptions, all create friction in the internal market and that affects these institutions disproportionately, impedes collaborative research and innovation, and raises compliance costs for institutions. It can thus be said that these policy objectives – directed at improving the conditions for digital knowledge flows across Member States – are tightly integrated and are capable of forming a single coherent legislative architecture. Ensuring procedural alignment also does not seem problematic, as the DKA would be anchored in legal provisions (Article 114 TFEU and Article 182(5) TFEU) that allow for the ordinary legislative procedure throughout.

Addressing institutional complexity

The ambition to establish a harmonised legal framework for the digital practices of knowledge institutions must, however, contend with another layer of complexity: the Commission’s own administrative structure and the politics of portfolio management, which is ultimately a matter of political discretion. The different policy domains in the DKA fall under distinct Directorate-Generals (DGs), each with its own policy priorities and internal expertise.

Institutional responsibility for drafting a DKA would likely rest with DG CNECT, especially its Copyright Unit, given the copyright nature of most measures. However, DG RTD would need to be closely involved for research-related provisions. While this integration might appear complex, the Commission has extensive experience with cross-departmental collaboration. Indeed, major digital legislative files like the AI Act and the Digital Services Act were developed through such cooperation, and DG CNECT and DG RTD are already working closely together in the context of the ERA. These files illustrate that coordination under a common strategic vision is not an impediment but a condition for legislative coherence in fields where competences overlap, and that such integration is possible when there is the necessary political ambition.

Conclusion

The civil society proposal shows that it is possible to target the interests and needs of knowledge institutions across different sectors and still form a coherent legislative architecture. Such an architecture would lie within the limits of competences assigned to the EU by the Treaties (Article 5(2) TEU) and would likely satisfy both the subsidiarity and proportionality requirements under Article 5(3) and (4) TEU. The necessity and added value of an EU-wide intervention are clear in areas such as cross-border research or e-lending, where diverging national implementations of EU copyright exceptions, on one hand, and outdated or restrictive interpretations of such provisions, on the other, undermine the functioning of the internal market. Provided that the measures are well-justified and designed to fill gaps in existing legislation, such as clarifying lawful access requirements or ensuring that publicly funded research is accessible across Member States, the likelihood of the proposal passing the three-part-proportionality test, as developed by the CJEU, also seems high.

At a time when the EU is preparing to consolidate the European Research Area through a legislative act, refine its copyright framework “to address new challenges raised by market and technology developments”, and promote the free movement of knowledge as a new foundational freedom of the Single Market, the case for a cross-sectoral intervention is feasible and it is more urgent than ever. The DKA is a test of the EU’s capacity to act in areas where institutional interests compete and legislative competence overlaps, and to affirm the Commission’s role as an agenda-setter capable of legislative innovation for the benefit of public interest institutions.