Blog post by Stephen Wyber
In the State of the EU address last week, Commission President von der Leyen announced, to some applause, the idea of a ‘Pact against gold-plating’.
This refers to when EU Member States implementing EU laws decide to add extra detail to the features of the official Regulation, Directive or other regulatory tool. While some of this is simple drafting to ensure EU laws fit seamlessly into national statute, sometimes it serves other goals, such as advantaging a given sector of that country’s economy.
The problem is that adding such provisions tends to make regulation more difficult to comply with. It also represents a barrier to cross-border collaboration by undermining harmonisation efforts.
Typically, efforts to address gold plating focus on things like product regulation or reporting requirements. However, the way in which national governments have implemented copyright exceptions – often under pressure from the entertainment sector – arguably provides another strong example.
This blog explores the specific case of the research exception in the Information Society Directive, which remains the core text of EU copyright law. It draws on the information gathered by contributors to a recent Centrum Cyfrowe/Future Law Lab report.
From (Relatively) Simple to Complex
The EU’s existing provision for research is set out in Article 5(3)(a) of the InfoSoc Directive as an exception to reproduction, communication to the public, and making available rights:
“use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;”
This is not perfect. It excludes research that may not have a purely non-commercial purpose, which disadvantages research-industry partnerships. The drafting around illustration could also be clearer.
Nonetheless, it remains relatively simple in its conception. It imposes no limitation on who can benefit, and what activities can be carried out as part of scientific research. Moreover, the list of works covered is broad.
The problem with the exception is that Member States have decided to “gold plate” it, with little regard for coordination.
Most dramatically, some countries have not even implemented the exception. Even among those that have, at least three (Latvia, Poland, and Spain) place limits on who can enjoy the exception, with Poland, for example, only giving research institutions the rights as opposed to individuals or other organisations.
The story is more complicated still when it comes to which specific uses are allowed. While Croatia, Cyprus, Czechia, Estonia, Hungary, Latvia, Poland and the UK all honoured the text of the EU Directive and kept this open, the others have all restricted uses in some way. Only four countries stick with an open list of what can be copied, with 18 adding restrictions. Others introduce provisions such as limits on how much can be copied/used, on who can access results, and more.
Overall, as the report indicates, gold-plating around the research exception in the InfoSoc Directive is rife. In total, in fact, only three countries have not carried out any sort of gold-plating at all.
Towards Simplification
The EU’s current research exception and its transposition into national law represent a very strong case study of gold-plating in action. While certainly introduced with positive intentions, these extra restrictions not only complicate the lives of those who rely on the law, but also hold back international research collaboration.
At a time when the EU is very much focused not only on realising its research and innovation potential, but also on making the fifth freedom a reality, this is an area where there is significant scope to act in favour of simplification.
As called for in KR21’s Action Plan on Knowledge for a Stronger Europe, the EU can contribute to its competitiveness agenda by introducing a mandatory copyright exception for scientific research. Introducing this in a Regulation will ensure direct applicability and help circumvent all of the complexity brought in by gold-plating.
This step would also provide the opportunity to remove the discrimination between non-commercial and commercial purposes, which makes very little sense in a world where the EU is investing so heavily – financially and politically – in knowledge valorisation.
The window for doing this is closing quickly, either through the European Research Area Act or copyright reforms. We urge the Commission to ensure that its efforts to boost simplification and tackle gold plating also serve to support the work of researchers, institutions and libraries.
25 September 2026
