Cross-posted from ODIPI | Blog post by Maja Bogataj Jančič
The study “Barriers and Enablers for Open Science in Copyright Law” lays the groundwork for discussions on the need to align copyright law with Open Science objectives. The study highlights that even the efforts and activities of Open Science, which legally depend on private licences and contracts, are potentially severely hindered by copyright regimes today. Copyright regimes should be better framed to support research and science and rapidly reformed not to hinder Open Science.
Copyright law is a system of legal rules primarily aimed at encouraging the creation of literary and artistic works while achieving a delicate balance between various societal interests.
Open Science represents a modern approach to the scientific process, emphasising collaboration and innovative methods for disseminating knowledge. It enhances access to and promotes the reuse of research results by leveraging digital technologies and other modern tools for collaboration.
The European Union and its Member States have been actively adopting various strategies, policies, action plans, and legal measures to incentivise the development of Open Science.
Despite all these efforts, significant barriers still remain which limit the development of Open Science’s full potential. Those that may provide the most significant obstacle are the ones created by copyright law.
The study “Barriers and Enablers for Open Science in Copyright Law“, authored by Dr. Maja Bogataj Jančič, Deborah De Angelis (avvocato cassazionista), Prof. Dr. Tihomir Katulić, Mark Bauer and Laura Pipan, is supported by the Knowledge Rights 21 project, managed by IFLA in partnership with LIBER and SPARC Europe, and funded by Arcadia – a family charitable foundation.
The study analyses the copyright law of three jurisdictions. Firstly, the provisions of the Slovenian Copyright and Related Rights Act are examined, with a focus on identifying legal barriers to Open Science, as well as possible enablers within the copyright framework. The study then expands its scope to Italy and Croatia. This was done with the help of a comprehensive questionnaire that served as guidance to Italian and Croatian researchers.
A significant barrier stems from the requirement for consensual management of copyright, which mandates unanimous consent among all rights holders for the use of a work. This requirement applies particularly to co-authored works and compound works. It complicates rights management, limiting the accessibility of research outputs and creating obstacles to knowledge dissemination.
The unwaivability of the right to remuneration or fair compensation represents another barrier, as authors cannot renounce these rights even if they clearly wish to make their work openly accessible. This restriction allows collective management organisations to claim remuneration on the author’s behalf (regardless of the author’s own preferences), imposing financial and administrative burdens on repositories and other platforms committed to ensuring Open Access and facilitating the reuse of research results. This mechanism ultimately curtails the ability of authors to exercise full control over their works and restricts the adoption of open licenses.
Further barriers stem from the requirement for specific separate transfers of rights. Copyright law often mandates that the individual components of economic rights must be transferred separately, necessitating distinct agreements for different types of uses. This fragmentation complicates rights management and discourages researchers from pursuing Open Access publication due to increased administrative complexity. Similarly, the requirement for special consent of the author for subsequent transfers imposes additional constraints. Even if a copyright holder has transferred rights, further transfers to third parties require explicit author consent unless contractually stipulated otherwise. This requirement introduces legal uncertainty and administrative inefficiencies, further limiting the potential for broader dissemination of research results.
Requirements for formality also act as barriers. These can mandate that all transfers of economic rights, as well as authorisations, be made in writing. The absence of a written agreement leads to an interpretation in favour of the author, creating potential ambiguities that complicate the negotiation and implementation of Open Access agreements. Additionally, the presumption of the publisher’s priority right limits the ability of authors to publish their works through multiple channels. By granting publishers of physical works a privileged position regarding electronic publication, this presumption restricts the immediate availability of research outputs on open-access platforms and conflicts with legislative efforts to introduce Secondary Publishing Rights.
Some legal mechanisms can function as both barriers and enablers, depending on their practical application. The presumption of transfer of economic rights from employees to employers is one such provision. When a copyright work is created in the course of employment, economic rights are often deemed to be transferred to the employer, typically for a set period. This presumption can restrict authors from managing their works under open licenses, as they do not retain control over their economic rights. If an employer does not actively support Open Access policies, researchers may face barriers in making their work openly available. However, this mechanism can also serve as an enabler, allowing institutions which have aligned with Open Science principles to disseminate research outputs broadly without requiring additional author consent. The effect of this provision is therefore contingent on the policies and commitments of the employer.
Explicit enablers for Open Science within copyright law remain largely absent. A legal framework that supports Open Access to and reuse of research results would ideally include provisions such as Secondary Publishing Rights, which create the right (and typically the mandate) for authors to deposit their publicly funded research in open-access repositories regardless of contractual agreements with publishers.
Barriers to open Science also extend beyond copyright law. Certain legal frameworks impose de facto copyright-like restrictions that limit the availability of research materials. Cultural heritage laws, for example, can introduce additional layers of protection over works in the public domain, requiring authorisation and, in some cases, payment of fees for the commercial use of faithful digital reproductions. This can restrict Open Science practices in disciplines that draw on such (cultural heritage) works.
Conversely, some legislative measures outside copyright law provide enablers for Open Science. The introduction of the Rights Retention obligation and Secondary Publishing Rights within research legislation (as opposed to copyright law) in Slovenia aims to facilitate Open Access to and reuse of publicly funded research. The list of laws with potential impacts considered here is also by no means exhaustive. Certain enablers may have an effect of incentives, as their implementation is tied to financial incentives within research funding frameworks or to sanctions for non-compliance.
Overall, the interplay of these barriers, conditional enablers, and external legal constraints and opportunities highlights the need for a more coherent and supportive legal framework for Open Science. While certain provisions protect the rights of authors and other stakeholders, they often conflict with the objectives of Open Access dissemination. Aligning copyright law with Open Science principles requires addressing the structural barriers that impede access while leveraging existing mechanisms to promote openness where possible.
The findings reveal that despite the increasing recognition of Open Science principles, copyright laws in all three jurisdictions still impose significant legal barriers.
In particular, this study illustrates the gap between political and strategic commitments to Open Science and legal realities that can severely limit the delivery of these commitments. All three countries have adopted national strategies that promote Open Science, but copyright law has not yet been aligned with these objectives. Instead, researchers must navigate a complex landscape where legal uncertainties and contractual restrictions imposed by law or legal presumptions create obstacles to the management of copyright in publicly funded research results according to principles of Open Science.
The study demonstrates that national differences in copyright law also create challenges for cross border cooperation of researchers in general, including when carrying out work in line with Open Science principles. What is legally permitted in one country may be restricted in another, leading to an uneven landscape that complicates the international dissemination of scientific knowledge and limits the impact of investments in producing open knowledge.
Researchers and scientists have been calling for several decades now for a better legal environment for their research and scientific activities in order to achieve the full potential of science and research for the development of society. Open Science initiatives based on bottom-up approaches, such as institutional policies (which rely on open licenses as a tool to open up research results) and the negotiation of more favourable agreements, can have a mitigating effect, particularly in the absence of a more balanced copyright framework with legally certain, broad, and harmonised research exceptions. Yet this study highlights that even Open Science efforts and activities can be severely hindered by the failure to update copyright law.
This study lays the groundwork for discussions on the need to align copyright law with Open Science objectives. The researchers, research institutions and others aligned with them will need to continue to advocate for a more balanced copyright system with legally certain, broad and harmonised research exceptions. This study highlights that even the efforts and activities of Open Science, which legally depend on private licences and contracts, are potentially severely hindered by copyright regimes today. Copyright regimes should be better framed to support research and science and rapidly reformed not to hinder Open Science.
The full text of the study “Barriers and Enablers for Open Science in Copyright Law” is available here.
2 June 2025
