ERA KR21 Conference: Barriers and Incentives for Open Science in Copyright Law

Welcome speeches were delivered by Mr. Dejan Dvoršek, Deputy Head of the Open Science Unit at the Directorate-General for Research and Innovation of the European Commission; Dr. Tomaž Boh, Director-General for Science and Innovation at the Ministry of Higher Education, Science, and Innovation (MVZI); Mr. Sergej Možina, Research Advisor at the Permanent Representation of the Republic of Slovenia to the European Union Brussels (SPBR) and Co-Chair of the ERA Forum; Mr. Stephen Wyber, Director of Policy and Advocacy at the International Federation of Library Associations and Institutions (IFLA) and a Member of the KR21 Management Committee; and Dr. Maja Bogataj Jančič, the host of the ERA KR21 Conference, Director of ODIPI, holder of ERA Action 2 for Slovenia, and KR21 National and Regional Coordinator.

Mr. Dejan Dvoršek, speaking on behalf of the European Commission, emphasized the necessity of transitioning Europe from an ownership-based economy to a model focused on access and sharing, as outlined in Enrico Letta’s report “Much More Than a Market”. He also highlighted the growing importance of the EU’s so-called “fifth fundamental freedom” – the free movement of knowledge – and noted that this goal is central to the mission assigned by European Commission President Ursula von der Leyen to Commissioner Zaharieva in drafting the ERA Act. Reflecting on the rise of generative artificial intelligence (AI), he stressed the critical need to establish a clear and fair legal framework for copyright and data management, enabling European researchers and innovators to remain globally competitive. He specifically highlighted the implementation of Secondary Publishing Rights as a pivotal measure to improve access to research results and foster better circulation of knowledge within the EU.

Dr. Tomaž Boh, Director-General for Science and Innovation at the Ministry of Higher Education, Science, and Innovation (MVZI), reaffirmed MVZI’s strong commitment to addressing the challenges and issues related to Open Science. He noted that these challenges are central to policy-making efforts at MVZI. Dr. Boh highlighted that key ERA documents – the ERA Governance Model, ERA Actions, and the ERA Pact – were developed and adopted during Slovenia’s Presidency of the Council of the EU, making Slovenia particularly dedicated to achieving tangible results in improving access to research outputs. He emphasized the significance of Slovenia’s legislative framework, particularly the Scientific Research and Innovation Activity Act (Slo. Zakon o znanstvenoraziskovalni in inovacijski dejavnosti; ZZrID), which obligates researchers – authors (or their employers) to ensure open access to publicly funded research results. He also mentioned the Decree on the Implementation of Scientific Research in Accordance with the Principles of Open Science (Slo. Uredba o izvajanju znanstvenoraziskovalnega dela v skladu z načeli odprte znanosti), which operationalizes the Act and introduces Rights Retention into the Slovenian legal order. Additionally, he underscored the importance of the Resolution on the Slovenian Scientific Research and Innovation Strategy 2030 (Slo. Resolucija o znanstvenoraziskovalni in inovacijski strategiji Slovenije 2030), which incorporates key Open Science principles. While Slovenia has already established a strong foundation on a legislative, decree, and strategic level, he noted that certain improvements remain necessary. As a key proposal, he highlighted an amendment to Article 41 of the ZZrID, which would introduce Secondary Publishing Rights into Slovenian law and establish a general framework fully aligned with ERA processes. He concluded by emphasizing that, beyond increasing research funding, a fundamental shift in our modus operandi is essential. Open Science currently represents the most important paradigm shift in this regard. He also expressed gratitude to Dr. Maja Bogataj Jančič for her excellent representation of Slovenia in ERA Action 2 and acknowledged the significant work ODIPI is doing to advance Open Science in Slovenia.

Mr. Sergej Možina, Research Advisor at SPBR and Co-Chair of the ERA Forum, highlighted the European perspective on Open Science, pointing to the Conclusions adopted by the Council of the EU in 2022 during the French presidency. These Conclusions emphasize three key points: the urgency of accelerating the transition to Open Science, the need for immediate and unrestricted open access to research results, and the requirement for Member States to create publishing policies that incur no costs on authors or readers. He noted that these Conclusions were reaffirmed as priority objectives in 2024. He also highlighted the significance of the ERA Forum, where the European Commission, Member States, associate countries, and various stakeholders (including researchers, businesses, research institutions, etc.) reached an overwhelming consensus that fostering Open Science and removing barriers to its development are critical steps forward for Europe’s future and competitiveness. He emphasized the potential of the ERA Act as a vital legislative vehicle for achieving harmonized and coordinated progress in advancing Open Science throughout the EU. He particularly noted that Slovenia, during the Competitiveness Council, called for using the opportunity of the new ERA Act to establish a specialized legislative framework for researchers. This framework would enable the free movement of knowledge, research results, and technologies across Europe – an obligation for Member States enshrined in Article 179 of the Treaty on the Functioning of the European Union (TFEU). He concluded by highlighting the current momentum and strong political will, urging that these be transformed into tangible actions directed at implementing the principles of Open Science at both the EU and Member State levels, thereby shaping a supportive framework for science in the digital age.

Mr. Stephen Wyber, Director of Policy and Advocacy at IFLA and a Member of the KR21 Management Committee, emphasized that the Knowledge Rights 21 program aims for a “Copernican shift” in legislation, adapting the legal framework to the digital age and placing research and knowledge sharing at the forefront. He stressed the importance of legislative adjustments, particularly the introduction of Secondary Publishing Rights, which would provide better access to knowledge and foster effective collaboration among research and educational institutions. He also warned against the misuse of technological protection measures and excessive reliance on contractual exclusions from statutory exceptions, emphasizing that addressing these issues is crucial for equitable access to knowledge and culture in Europe. Finally, he praised the work of Dr. Maja Bogataj Jančič and ODIPI, noting their efforts to ensure that researchers’ and libraries’ voices are heard, while also actively and constructively collaborating with the broader expert community to turn advocacy into actionable solutions.

Dr. Maja Bogataj Jančič, Director of ODIPI, holder of ERA Action 2 for Slovenia, and KR21 National and Regional Coordinator, emphasized that the open access movement has roots extending back more than two decades. She shared her first encounter with the concept of Open Access Policy during her studies at Harvard University over 20 years ago, when various Harvard schools began adopting such policies. While significant progress has been achieved since then, she noted that much remains to be done. Slovenia is among the leading countries in the fields of open access and Open Science, which is a remarkable achievement. However, she stressed the need for additional efforts at both the EU and Member State levels, including in Slovenia, to achieve the overarching goal of increasing access to knowledge. She identified the adoption of Secondary Publishing Rights as a pivotal measure to expand access to research outputs and further accelerate the transition to an open research environment. Dr. Bogataj Jančič also highlighted the ERA Act (the Digital Knowledge Act) as a unique opportunity to advance science and research across Europe by removing existing barriers to Open Science and establishing a more effective framework for scientific progress and innovation.

Following the welcoming speeches, Ms. Ana Fidler from the Central Technical Library at the University of Ljubljana, who, alongside Dr. Maja Bogataj Jančič, serves as a holder of ERA Action 2 for Slovenia, opened the Conference with the first presentation, offering an insightful overview of the state of Open Science in Slovenia.

This was followed by a presentation of the KR21 study, “Barriers and Incentives for Open Science in the Copyright Law”, which provides an in-depth analysis of national legal provisions and their impact on Open Science. Dr. Maja Bogataj Jančič highlighted the barriers and incentives within the Slovenian Copyright Law. Ms. Deborah De Angelis, the KR21 National Coordinator for Italy, discussed the situation in the Italian Copyright Law, while Prof. Dr. Tihomir Katulić from the University of Zagreb analysed the Croatian Copyright Law. All three speakers identified numerous barriers for Open Science embedded in their respective national copyright frameworks, noting that explicit incentives for Open Science are scarce. Moreover, they identified barriers and some incentives for Open Science outside the copyright legislation.

In the afternoon session, Mr. Stephen Wyber introduced the Knowledge Rights 21 program – a three-year initiative that aims to mobilise the potential of Europe’s knowledge institutions, particularly libraries, to engage with others across the spectrum of the access to knowledge movement to build momentum towards long term copyright reform that benefits library users and researchers in the 21st century. He outlined three key challenges faced by libraries and research institutions: a lack of voice, as libraries often have limited influence on legislative processes and advocacy efforts; a lack of focus, as research and education are frequently treated as secondary concerns or unnecessary expenses with insufficient recognition of their broader value; and a lack of adaptation, as legislation struggles to keep pace with digital technologies that could enable more equitable access to knowledge. The program proposes three main strategies to address these issues: amplifying the voice of libraries and their users through advocacy networks, strengthening the focus on research through evidence-based policy support, and promoting adaptation by developing targeted policies and legal reforms to better facilitate access to research, education, and culture in the digital age.

The Conference continued with presentations on specific projects and the work of KR21 National Coordinators. Key contributors included Dr. Iva Melinščak Zlodi from the University of Zagreb, the KR21 National Coordinator for Croatia, a Member of SPARC Europe and future President of its Board of Directors; Dr. Giannis Tsakonas, Director of the Library and Information Center at the University of Patras, Vice President of LIBER, and a Member of the KR21 Management Committee; Dr. Ana Lazarova from the Sofia University, KR21 National Coordinator for Bulgaria; and Dr. Konrad Gliściński from the Jagiellonian University and Centrum Cyfrowe. They presented the KR21 reports and position papers, highlighting critical aspects for shaping Open Science regulations in the EU.

Dr. Iva Melinščak Zlodi presented research on the current state of Rights Retention policies across Europe, focusing on the findings of the “Retain I” and “Retain II” projects. She emphasized the importance of a systematic approach to retaining rights for academic works and outlined steps for policy development and advocacy.

Dr. Giannis Tsakonas provided an in-depth presentation on the Secondary Publishing Rights policy and its significance for Open Science and the research community. He also presented LIBER’s activities in this area, including the development of a model law.

Dr. Ana Lazarova presented a study analysing 100 licensing contracts between publishers and academic and public libraries in 14 European countries. She highlighted the impact of contractual restrictions on the implementation of statutory copyright exceptions, essential for libraries’ missions. She stressed the need for stronger legislative protections and improved negotiation strategies to empower libraries in their educational, research, and cultural roles.

Dr. Konrad Gliściński offered a comparative analysis of copyright law in Europe, with a particular focus on e-lending and the concept of Secure Digital Lending (SDL). He outlined the legal challenges libraries face in EU Member States and provided recommendations for legislative solutions that would grant libraries greater autonomy in digitizing and lending books.

Following this, a roundtable discussion featured contributions from KR21 National Coordinators: Mr. Eric Luth, Wikimedia Sverige, the KR21 National Coordinator for Sweden; Dr. Ana Lazarova, the KR21 National Coordinator for Bulgaria; and Dr. Maja Bogataj Jančič, the KR21 National coordinator for Slovenia and Regional coordinator for Central and Southeast Europe. They explored the transformative potential of the ERA Act, emphasizing its pivotal role in improving access to knowledge, advancing research, and fostering the development of Open Science.

The Conference concluded with a critical panel titled “Knowledge for a Stronger Europe: Does Europe Need Special Regulation for Research and Education?”. Prof. Dr. Caterina Sganga from Scuola Superiore Sant’Anna presented the comprehensive EU study, “Improving Access to and Reuse of Research Results, Publications and Data for Scientific Purposes”. The study underscores the need for an overarching EU legislative framework to harmonize and streamline the field, enabling a clearer and more coordinated development of science and research. A particular focus was placed on the potential of a dedicated legislative instrument (i.e., the ERA Act/the Digital Knowledge Act) to provide Europe with a solid foundation for promoting research and innovation, addressing the issues from the perspective of researchers and research. The study suggests that improving access to research results – which is critical for fostering scientific progress in the EU – can be achieved through upgrades to European and national copyright legislation and data regulatory frameworks. Key measures include the introduction of more effective exceptions and limitations to copyright. The study also identifies Open Science principles as an important mechanism through which copyright law can be improved. In this context, it highlights Secondary Publishing Rights (or at least Rights Retention) as the most effective current tool for managing research outputs more efficiently and aligning legal frameworks with the needs of the digital age.

Contributions from subsequent speakers built upon the study presented by Prof. Dr. Sganga, focusing on key legislative and institutional challenges and presenting practical solutions. Mr. Dejan Dvoršek from the European Commission detailed the progress of ERA Action 2, including efforts to establish a legislative framework for the free circulation of scientific knowledge and research results, as well as harmonizing copyright and data access regulations.

Mr. Stephen Wyber, representing Knowledge Rights 21, emphasized the urgency of a paradigm shift that places researchers and research at the forefront of policymaking in this field. He noted that currently there is a unique opportunity to unify legislation for research, proposing legislative solutions that address copyright and data law, potentially including broader protections for research institutions against risks, from the perspective of researchers.

Dr. Justus Dreyling, Policy Director of the Communia Association, emphasized the need for legislative solutions to expand the use of existing copyright exceptions and outlined possibilities for enhancing access to scientific results through clearer and more harmonized rules. He highlighted the ERA Act (the Digital Knowledge Act) as a pivotal opportunity to address these challenges by establishing a cohesive framework that supports research and innovation in the digital age.

The panel concluded with Dr. Maja Bogataj Jančič, Director of ODIPI and Conference host, summarizing key points from the presentations and reiterating the importance of collaboration and collective efforts to shape a supportive future for science and research.

The ERA KR21 Conference provided a crucial platform for discussing the challenges and opportunities of Open Science, strengthening Slovenia’s engagement in shaping European policy in this field. The EU study “Improving Access to and Reuse of Research Results, Publications and Data for Scientific Purposes” emphasized the need for a coordinated EU approach to Open Science to enhance the development of science and research. On the other hand, the study “Barriers and Incentives for Open Science in the Copyright Law” pointed out that despite a plethora of initiatives, strategies, action plans, and existing laws at both the EU and Member State levels aimed at promoting Open Science principles, significant barriers to their full implementation still remain. These obstacles are particularly prevalent in national copyright laws. Systemically addressing these barriers and introducing incentives, such as Secondary Publishing Rights, through better legislative solutions in copyright law and enhanced implementation of Open Science principles, is essential at both the EU and national levels to unlock the full potential of science and research in Europe.

Research has never been as prominently prioritized in EU policymaking as it is today. To secure sustainable progress and competitiveness in the digital age, the EU must transition from mere words to tangible action. The adoption of new legislative acts should place research and education at the forefront, and the European Commission should take this into account when drafting the ERA Act (the Digital Knowledge Act). Additionally, Member State governments must align their legislative reforms with these principles to foster the advancement of Open Science. In Slovenia, the proposed amendment to Article 41 of the Scientific Research and Innovation Activity Act (ZZrID), which would introduce Secondary Publishing Rights into the Slovenian legal order, represents a significant step forward in enabling better access to research results. This amendment was proposed by the Ministry of Higher Education, Science, and Innovation based (the Ministry) on a recommendation from the Slovenian Rectors’ Conference. The proposal has received strong support from the stakeholders within the scientific research community, with no opposition raised during the public consultation. However, during interministerial coordination, the Slovenian Intellectual Property Office (URSIL) unexpectedly opposed the amendment. Subsequently, in October, commercial publishers also raised their objections with the Ministry. URSIL’s surprising stance, which closely mirrors only the objections raised by commercial publishers, diverges from the National Intellectual Property Strategy 2030 (Slo. Nacionalna strategija intelektualne lastnine do leta 2030) for which URSIL itself is responsible. Furthermore, URSIL’s opposition clearly contradicts the Resolution on the Slovenian Scientific Research and Innovation Strategy 2030 (Slo. Resolucija o znanstvenoraziskovalni in inovacijski strategiji Slovenije 2030), which guides the Ministry’s actions. The Government of Slovenia will now decide on the proposal. Adopting the amendment to Article 41 of the ZZrID would not only mark a significant step forward in improving access to research results but also reaffirm Slovenia’s commitment to advancing the principles of Open Science and strengthening its research ecosystem.

In addition to the ERA KR21 Conference, the first day of the Open Science Day and the National EOSC Tripartite Event took place on December 3, 2024. There, a panel titled “Beyond Regulation: Access to Research Data and the Role of Artificial Intelligence with Socio-Legal Aspects and EOSC” addressed similar topics. Prof. Dr. Caterina Sganga, Prof. Dr. Thomas Margoni, Prof. Dr. Sean Flynn, Dr. Justus Dreyling, and Mr. Stephen Wyber highlighted the necessity for sustainable legislative solutions within the European Research Area to facilitate effective research data management, promote collaboration, and prevent access restrictions caused by technological or legal barriers.