New IViR Study: Towards a Digital Knowledge Act - Mapping Policy Options to Mitigate Legal Risks for Teaching, Learning and Research

Knowledge institutions – educational establishments, research organisations and cultural heritage institutions – occupy a central position in Europe’s research and innovation ecosystem. Yet their everyday operations are conducted under a regulatory climate characterised by norm complexity and fragmentation leading to considerable legal uncertainty. Exposure to contractual asymmetry and technological control measures further increase chilling effects that may prevent such institutions from fulfilling their public interest mission. The new IViR Study – commissioned by COMMUNIA – demonstrates that legal uncertainty is not a marginal inconvenience but a systemic condition. It distorts institutional behaviour, discourages legitimate reliance on copyright exceptions, and culminates in a culture of defensive compliance. These findings emerge from desk research and policy analysis, as well as insights gathered through interviews with experts from European knowledge institutions.

Under the Charter of Fundamental Rights, EU legislation is bound to create a favourable, enabling environment for teaching, learning and research. To achieve this goal, a copyright system is needed that supports the work of knowledge institutions. The Study demonstrates that current EU copyright law needs to be recalibrated to offer a solid basis for the work of knowledge institutions:

-       copyright exceptions for teaching, learning, research and cultural heritage work are narrowly circumscribed, raising the question whether a given form of use falls within the scope the statutory use permission;

-       even if a copyright exception potentially applies, rightsholders can destabilise the invocation of the copyright exception by doubting full compliance with the open-ended criteria of the three-step test;

-       technological measures may make it impossible to rely on use privileges set forth in copyright exceptions;

-       contract terms may reign supreme over exceptions and become the main instrument governing access and use of knowledge resources.

Against these conditions, the Study proposes a reform package aimed at restoring predictability of legal outcomes and trust in statutory use privileges and the copyright framework as an enabling environment for educational, scientific and cultural heritage work. Each mechanism responds to a distinct driver of risk, consisting of interpretive ambiguity, bargaining asymmetry, liability exposure, or cross-border complexity. Yet they are mutually reinforcing. Their combined effect would be to move knowledge institutions away from an approach where they avoid relying on use privileges in the EU copyright acquis, towards a proactive engagement with copyright law.

Develop sector-specific best-practice guidelines

The Study demonstrates that uncertainty often arises not from the absence of legal norms that grant knowledge institutions specific use privileges, but from difficulties in interpreting existing ones. Practice-oriented guidelines can translate abstract, complex legal requirements into clear, manageable compliance protocols. They may be developed around use case archetypes that mirror recurrent institutional practices, such as scraping and web harvesting, digitisation and long-term preservation of collections, large-scale TDM on licensed and own resources, cross-border data sharing and transnational teaching programmes. For each archetype, the guidelines could map the relevant provisions and propose decision trees and diligence checklists. They would have a preventive function by steering projects through lawful pathways before they begin, and a defensive function by documenting the steps taken to demonstrate diligence if questions arise later.

Best-practice guidelines can derive their authority from transparency as to the roles and positions of experts involved in the process, balanced drafting, and continuous updating. They should include illustrative examples of lawful conduct and develop diligence criteria in the light of the various tasks and user expectations that shape the work of knowledge institutions.

Establish a copyright advisory and dispute settlement body

As a second measure, the Study proposes to address the lack of authoritative, timely interpretation of the norms impacting the work of knowledge institutions. Legal uncertainty persists not only because copyright norms are complex but also because litigation is often avoided. Instead of openly entering into a dispute, knowledge institutions may internalise copyright conflicts and finally “resolve” them through over-compliance and quiet withdrawal from planned activity. Knowledge institutions are not looking for yet another forum for adjudication but for a trustworthy, authoritative source of interpretive guidance that provides operational support to all stakeholders involved.

Accordingly, we recommend the establishment of a Copyright Advisory Body for the Educational, Scientific and Cultural Heritage Sector composed of independent experts with a mandate to issue non-binding yet reasoned opinions and to coordinate interpretive standards across Member States. The advisory opinions should lead to a solid corpus of “soft precedent” that organically leads to greater predictability of copyright outcomes within the sector.

Introduce a liability privilege for staff of knowledge institutions

Institutional caution in complex copyright and contractual matters is often driven by the fear of exposure to substantial damage claims and reputational harm, causing overcompliance and, potentially, also abandonment of activities. A liability exemption for diligent staff acting in good faith could shift this risk calculus while preserving incentives for diligence. The exemption should apply when staff act within their institutional mandate and in good faith, having demonstrably exercised sufficient care. This approach would encourage knowledge institutions to adopt clear and robust policies with regard to copyright and contractual diligence as their liability would be contingent on being able to demonstrate that staff operated under appropriate procedures.

The liability privilege could be linked to compliance with best practice guidelines or advisory opinions. That way, the mechanism would create a positive compliance feedback loop whereby knowledge institutions that systematise internal governance are rewarded with greater certainty. This approach recognises that the fear of infringement is not solely economic but also institutional, rooted in the reputational sensitivity of public bodies and their hierarchical accountability structures that is additionally derived from the often public law character of such institutions.

Adopt country-of-origin rules for defined research uses

The 2019 Directive on Copyright in the Digital Single Market has introduced a country-of-origin rule with regard to digital cross-border teaching activities. This principle should be extended to research activities relying on copyright exceptions in order to enhance legal certainty for transnational research consortia. Cross-border collaboration increases the complexity and legal uncertainty evolving from divergent national implementations of optional copyright exceptions for scientific research. A given act of use may be lawful in the light of copyright exceptions adopted in one Member State and infringing in another which did not introduce a congruent use privilege. A country-of-origin rule would anchor the copyright compliance analysis in the law of the Member State where the principal investigator is based, clarifying the applicable legal framework for ascertaining compliance with copyright rules. Properly calibrated, this mechanism would transform the current patchwork of national use permissions and restrictions into one predictable legal baseline for cross-border research.

Adopt measures against unfair contract terms

A central source of legal uncertainty is the use of contract terms that neutralise copyright exceptions through foreign law and forum clauses, and technical access restrictions while being subject to overbroad indemnities. A sector-specific regulation seeking to ban unfair contract terms would level the playing field. It would identify and invalidate clauses that defeat the purpose of EU copyright exceptions on which knowledge institutions depend to carry out their public interest missions. It could contain:

-          a blacklist of unenforceable clauses;

-          a grey list of presumptively unfair clauses;

-          a reasonableness test for bespoke terms; and

-          transparency obligations requiring the use of plain and intelligible language and contra proferentem interpretation of ambiguities.

This mechanism directly targets a contractual leverage problem, composite contracting strategies, and indemnity clauses that knowledge institutions cannot realistically perform. It would complement, rather than displace, negotiation freedom by establishing baseline fairness standards.

Combine the mechanisms to arrive at a coherent framework

Together, these measures construct an ecosystem of lawful confidence where knowledge institutions, while acting responsibly, can benefit from copyright flexibilities to a larger extent. Rightsholder interests are preserved through diligence rather than deterrence. Copyright can serve the advancement of knowledge and culture, as envisaged in the regulatory design underlying the EU system of exclusive rights and exceptions for educational, research and cultural heritage activities.

This post was also published on COMMUNIA.