Blog Post by Dr Konrad Gliściński LL.M. (Intellectual Property Law Chair JU/ Centrum Cyfrowe)
Research today is international, digital, data-intensive, and collaborative by default. Scientists routinely work across borders, rely on access to large collections of publications and data, use computational methods such as text and data mining (TDM), and increasingly incorporate AI tools into their research workflows. Yet the legal framework governing access to and use of copyrighted materials for research remains fragmented along national lines.
A new report, Barriers to Research: Insights into the Patchwork of Research Exceptions in European Copyright Laws and Practical Perspectives from European Researchers, prepared by Centrum Cyfrowe in collaboration with the Future Law Lab of the Jagiellonian University, shows that despite decades of copyright harmonisation efforts at the EU level, researchers across Europe still operate within a highly fragmented legal framework, resulting in legal uncertainty and unnecessary obstacles.
Through a comparative analysis of 28 European jurisdictions and interviews with researchers and legal experts, we found that the current system often forces researchers to navigate conflicting national regulations, unclear exceptions, restrictive licensing practices, and varying interpretations of what is legally permitted. The findings challenge one of the core assumptions underlying EU copyright policy: that harmonisation has created a common legal environment for research. In reality, by focusing on rights while neglecting exceptions to them, the opposite appears to be true.
The I-REx Index: A New Lens on European Copyright Exceptions
Using the newly developed I-REx (Index of Research Exceptions), we found that all EU Member States have implemented research exceptions more restrictively than required under EU law. The index assessed ten copyright exceptions that are particularly relevant for scientific research, including the research exception under Article 5(3)(a) of the InfoSoc Directive, research exceptions for copyright-protected and sui generis databases, the research exception for neighbouring rights, as well as supplementary exceptions such as quotation, private copying, reproductions by libraries, educational establishments, museums and archives, dedicated terminals, reprographic reproduction, and the Text and Data Mining (TDM) exception for scientific research.
The I-REx measures the openness of copyright systems towards scientific research: the higher the score, the more restrictive the legal framework and the narrower the scope of research uses permitted under copyright exceptions. Conversely, lower scores indicate more open and research-friendly copyright regimes. While the EU framework creates possibilities for a relatively open standard to support research activities (while still discriminating against research involving commercial actors), national legislators have frequently introduced additional conditions, limitations, and procedural requirements that narrow researchers’ freedoms. As a result, the average level of restrictiveness across Member States is more than twice as high as the baseline set by the EU standard itself.
A Growing Disconnect: Lawful Here, Prohibited There, Unclear Everywhere
The consequences are significant. Activities that are clearly permitted in one jurisdiction may be prohibited, or at least legally uncertain, in another. As a result, cross-border research collaborations often operate under a constant cloud of legal uncertainty. In practice, international research consortia frequently need to align their activities with the most restrictive legal regime among participating countries, effectively reducing the scope of lawful research for everyone involved.
Perhaps most strikingly, our case-study analysis revealed that even copyright experts frequently disagreed about the legality of common research activities. Across ten typical research scenarios assessed by experts from 21 European countries, there was no clear consensus on whether many activities were permitted or prohibited. Experts from different countries reached markedly different conclusions when assessing identical research scenarios, highlighting not only the diversity of national implementations but also the broader lack of legal certainty surrounding research uses. If legal specialists struggle to determine what the law allows, it is unrealistic to expect researchers themselves to navigate these complexities with confidence.
The qualitative research paints a similar picture. Researchers often perceive copyright not as a tool that supports science, but as a source of uncertainty and practical obstacles. Many reported receiving little or no formal training on copyright law and instead relying on informal practices, professional networks, and institutional workarounds to access and share research materials.
A particularly compelling finding was the prevalence of a “greater good” mindset. Many researchers view the creation and dissemination of knowledge as a societal mission that outweighs restrictive or unclear copyright rules. As a result, they sometimes prioritise scientific collaboration and access to knowledge over strict legal compliance, operating in legal grey areas or simply looking the other way when copyright law is perceived as incompatible with research needs. This is the worst of all worlds, with the legitimacy of copyright itself in doubt, while researchers themselves need to rely on rightholders choosing not to take legal action to enforce their rights.
Participants also highlighted that copyright regulation has not kept pace with contemporary research practices, especially in areas such as Artificial Intelligence, Machine Learning, and Text and Data Mining. Overall, the findings point to a growing disconnect between existing copyright frameworks and the realities of modern, digital, and collaborative research.
Europe Can Do Better: A Copyright Framework Fit for the European Research Area
Europe cannot build a competitive and innovative research ecosystem while maintaining legal fragmentation at this scale. Rather than supporting scientific activity, the current framework often pushes researchers into legal grey areas, where routine and socially valuable research practices exist in a state of uncertainty, and they must spend time on regulatory compliance rather than on research itself.
Rather than facilitating the production and circulation of knowledge as a public good, the current copyright framework too often hampers the very research activities needed to support inclusive and sustainable social, economic, and technological progress.1
We therefore call for concrete reforms at both the national and EU levels.
In the short term, Member States should fully implement research exceptions in line with the scope permitted by EU law, without introducing additional national restrictions that undermine their effectiveness. Research exceptions should be protected against contractual override, and uses that are lawful in one Member State should be recognised as lawful throughout the EU (European Standard+).
In the longer term, Europe needs a mandatory and fully harmonised research exception that genuinely reflects the realities of contemporary scientific research (Enhanced Exception for Scientific Research).
As proposed in our report, such an exception should:
- Permit the use of copyrighted works and other protected subject matter for scientific research purposes across the EU, without discrimination between non-commercial and commercial research.
- Apply regardless of national borders, ensuring legal certainty for cross-border research collaborations.
- Prevent contractual terms, including choice-of-law and jurisdiction clauses, from overriding researchers’ rights.
- Allow researchers to circumvent technological protection measures when necessary to benefit from the exception
More broadly, the EU should recognise that scientific knowledge is a public good and that copyright law must support, rather than hinder, the creation, sharing, and reuse of knowledge. A genuine European Research Area requires a legal framework that prioritises research, collaboration, and innovation over legal fragmentation and uncertainty.
A Timely Opportunity: The ERA Act and the CDSM review
The ongoing work on the European Research Area Act (ERA Act), together with the ongoing evaluation targeted initiative for a better copyright environment for European creativity and innovation, offers a timely opportunity to embed this principle in EU law and policy. If the EU is serious about establishing research as the “fifth freedom” of the internal market, the ERA Act should include safeguards ensuring that copyright law actively enables rather than constrains scientific research. The right to research must become a core component of the European Research Area.
This report has, at different stages of its development, benefitted from support from Knowledge Rights 21 (KR21) and COMMUNIA.
- Cf. K. Gliściński, The Unsustainable Patchwork of Research Exceptions in European Copyright Law: Insights from the I-REx Index, w: C. Geiger (red.), Intellectual Property, Ethical Innovation and Sustainability: Towards a New Social Contract for the Digital Economy?, ATRIP Intellectual Property Series, Edward Elgar Publishing, Cheltenham–Northampton, 2026, p. 148-167. ↩︎
19 June 2026
