The EU acquis, as it affects research libraries, is characterised by both overlaps and gaps, which exist alongside forces and habits endemic to these institutions. Together, these create a situation that is far from favouring research in Europe. It’s time for a change.

Where the rubber hits the road

Libraries have long played a crucial role in facilitating research. By centralising the purchasing of materials, they allow access for researchers and students at a scale that would otherwise be inaccessible to all except the wealthiest. As arguably an early example of the sharing economy, they have long provided a way of sanding off one of the rougher edges of the monopoly rights created by copyright.

Furthermore, with a long history of collaboration – for example, through inter-library loan or resource sharing – they collectively form a vital research infrastructure, providing a means for someone registered with one institution to access copies of works held by another.

In pursuing their missions, libraries are subject to the rules established by copyright. These are not typically designed with libraries and research operations in mind, setting up a situation of potential tension between these rules and their legal mandate (typically indirectly through university or research laws) to support research and learning.

Nonetheless, in a pre-digital world, this conflict tended to remain a possibility rather than a reality. Exhaustion offered enough space for libraries to perform their functions, for example, by allowing consultation on site, lending, preservation copyright and more (save the case of licensing for photocopying), and where it did not, they were excluded from the scope of provisions in other ways. This is the case, for example, with the Rental and Lending Directive, which allows for the exclusion of education and research libraries from obligations to make public lending payments.

However, this is no longer the case today. Shifts in technology and business models mean that it is far harder to avoid contradictions, leaving libraries with hard choices. Added to this, the multiplication of digital legislation in Europe and elsewhere has also left libraries with a much longer checklist of rules that they need to follow.

In short, while libraries have always been the place where the rubber hits the road – where the commands and constraints of different laws and policies need to be translated into a single body of practice – this contact is far bumpier today than it was before.

This blog explores these tensions, as well as the additional complexity introduced by the circumstances in which libraries operate.

A Faustian pact…

The past decades have brought a huge expansion in the technological possibilities open to researchers and the libraries that support them. Accessing, analysing, and sharing data – all typical research activities – have become far easier, opening possibilities for greater collaboration and enhancing research productivity. The logic of research freedom and responsibility both push in the direction of making the most of these opportunities in order to advance science on behalf of wider societal goals.

In addition, libraries have led the way both in advocating for and implementing open access and open science, themselves enabled by the shift to digital. They have become managers of institutional repositories, focused on giving greater profile to their own institutions’ outputs, as well as supporting the uptake of open science practices which promote collaboration throughout the scientific process.

At the same time, the shift from the outright purchasing of physical copies to the (temporary) licensing of digital ones has effectively side-stepped the provisions that used to protect libraries’ space to support research.

This effectively represents a Faustian bargain (although not a conscious one); in exchange for the convenience and ease of digital, libraries have lost the safety net they used to enjoy. Even core library functions, such as preservation, are no longer guaranteed, with content only available under time-bound licences not typically covered by relevant exceptions, which only apply to items in permanent collections. Preservation provisions applying to materials in a library’s permanent collection are useless when a library is not even able to build up a permanent collection anymore.

While practice may vary from country to country, typically the terms of a licence prevail over exceptions. Furthermore, in the absence of clear mechanisms for their removal – or, for example, provisions limiting institutions’ ability to take unilateral action – technological protection measures provide an extra layer of cladding around whatever terms feature in the licence, regardless of whether they undermine copyright exceptions provided for in law. Unlike what happens when universities license patents, there has not been a drive to promote FRAND principles when it comes to content licences for research institutions and their libraries.

The most recent copyright reform – the Directive on Copyright in the Digital Single Market of 2019 – did offer some potentially helpful guarantees with the creation of a text and data mining exception for research (Article 3, Directive 790/2019), protected against contract terms and technological protection measures. However, the Directive was fundamentally lacking in ambition, merely making tweaks around the edges of InfoSoc, rather than aiming to provide a comprehensive and coherent model that could help to ensure coherence between copyright and research law and policy.

As highlighted above, a further dimension here is the growing thicket of digital legislation, in part due to the European Union’s ambition to make the most of the ‘Brussels effect’. Such laws have generally paid little attention to research, if any at all, let alone libraries. As such, we have a Data Act that gives clearer access possibilities to SMEs than to universities, and a Digital Services Act that does not offer a clear exemption for research repositories. These rules, furthermore, are not always clearly and consistently formulated.

An additional factor is the political drive to encourage a stronger focus on ‘knowledge valorisation’. While this term is designed to replace the previously more widespread ‘research transfer’ or ‘knowledge transfer’, it continues to imply an emphasis on identifying scope for commercialisation.

For institutions following this path, this means that researchers using library resources are, more and more, involved in research-industry collaborations or are working on a spin-off alongside academic work. While supporting such colleagues may make sense in light of funding and policy mandates, current EU copyright law stands in the way with its blanket exclusion of all commercial uses.

… with an added dose of complexity

While steering a path through the potential contradictions of legal obligations is already difficult enough, this is likely to be particularly true for the nature of libraries and research institutions themselves. These characteristics tend to tip the balance of the contradictions created in law towards a more negative impact.

First of all, libraries tend to be risk-averse by nature. In a profession with a strong focus on wanting to be seen as having done things correctly, there is a reputational risk to making mistakes. Furthermore, university general counsels are likely to be focused on avoiding legal action rather than aiming to challenge the law, while institutions as a whole will not want to face the risk of fines or damages.

In this context, it is important to note that the penalty for getting things wrong with copyright looms far larger than the penalty for failing to deliver on libraries’ mission. Libraries are unlikely to be sued by a researcher to whom they need to say no (they will likely then use informal channels to get what they want, or just give up). In contrast, the threat of legal action from a publisher or collective management organisation is far more present. As a result, even when faced with a contract term that can be overridden by law, a library may well follow it nonetheless.

Beyond attitudes towards risk, the capacity of libraries to deal with complexity is also low; they rarely have access to dedicated copyright expertise. At the same time, there is also a more fundamental question about whether being in a situation where a library needs to dedicate significant resources to managing copyright is really an optimal one. Similarly, while training is welcome, this should not be based on the assumption that dysfunction in the copyright system is solely due to the ignorance of librarians.

Finally, it is also worth remembering that librarians themselves do not necessarily have as much power as one might expect. For example, while they may run institutional repositories and have the best overview of the impact of licensing practices, it is researchers themselves who typically negotiate and sign agreements over their articles. Moreover, unless there is a specific provision granting institutions the right to do this, they may not even have particularly strong leverage for ensuring that articles are placed into repositories.

In summary, the situation we are in is one where the law is already giving conflicting signals, and the circumstances of libraries work against a pro-access/research approach. To come to a positive outcome, not only does the law need to change, but interventions are also necessary to help shape attitudes and behaviours.

A way out?

There are, of course, different versions of the Faustus story, which end better or worse for the doctor. The same goes for libraries and research institutions.

Already, there are initiatives in the pipeline which can help resolve the complexity currently faced by libraries. Perhaps the most promising is the European Research Area (ERA) Act, proclaimed as the means by which the European Union can make a reality of the ‘fifth Freedom’.

For knowledge truly to be borderless within the EU, it is hard to imagine any comprehensive approach that does not aim to harmonise the research exception, or to remove the non-commercial/commercial distinction, which makes so little sense given the strong encouragement for partnerships and spin-offs elsewhere. Similarly, introducing a harmonised Secondary Publication Right will complement the open access mandates attached to much public funding, and should help to further expand the share of research outputs that are available open access. Similarly, any efforts to eliminate barriers to retaining rights and subsequent open licensing will also be pursued.

Coming sooner than this, the Digital Package promises to update various pieces of data-related legislation and offers a chance to harmonise definitions. It could also helpfully expand protections against unfair terms for access to data, ensuring that they benefit research institutions and researchers as well as businesses.

As for changing incentives, the extension of protections against unfair contract terms may also be beneficial, building an understanding among libraries and research institutions that they are not alone. While the upcoming Digital Fairness Act will a priori focus on the rights of natural persons as consumers, there is an opportunity to underline how contracts for (bundled) digital content offered to institutions ultimately also hurt researchers and learners. Penalties for companies found to be systematically imposing unfair terms could significantly change the dynamic.

Nonetheless, even if the legislation mentioned here delivers on all that it might, this does not necessarily offer a long-term solution. There will always be pressure to pass laws to address real or perceived issues, in particular in the digital space. These bring with them the risk of increasing complexity for libraries and research institutions.

This points to a different approach to lawmaking in general. Research needs to be recognised as a top-level policy priority. We need to stop regulating for it (and the infrastructures that underpin it) by accident or acting as if research institutions are the same as major digital platforms. This could be achieved through a stronger ‘research test’ as part of regulatory impact assessments, as well as by ensuring that the ERA Act itself is thoroughly reviewed on a regular basis.

Arguably, we still can choose our own adventure here, but to do so, we need to be ready to make the most of the opportunities imminent legislation brings by:

1. Making research a first-order policy priority, rather than a secondary concern
2. Designing laws that respond to the nature and needs of the sector
3. Not hesitating, but rather seizing the opportunities already in front of us