Unlocking Knowledge: Bulgaria Takes Next Steps in Open Science Legislation

Contribution by Ana Lazarova, KR21’s national coordinator for Bulgaria

In late 2023, Bulgaria introduced a Secondary Publishing Right (SPR) clause to its Copyright Act, marking the beginning of its journey towards a robust legal framework for advancing Open Science. By May 2024, Bulgaria further solidified its commitment with the introduction of a Secondary Publishing Obligation (SPO) into national law, which made it the first EU country to implement both SPR and SPO regimes at the national level.^[1]

Unlike an SPR, which typically is a provision in copyright law granting academic authors the right to republish their works and empowering them vis-à-vis publishers, an SPO usually mandates entities to republish research outputs, generally within the open science framework. This obligation primarily targets research performing organisations (RPOs) and research funding organisations (RFOs), rather than individual authors.

The European Union primarily utilizes soft law tools to support open science, including strategic documents, recommendations, programs, and funding policies under the European Research Area (ERA). Many EU Member States follow a similar approach, combining strategic documents, funding programs, and institutional policies to promote open access. The Netherlands, for instance, has adopted a grassroots strategy for Green Open Access, highlighted by the “You share, we take care” campaign, which empowers secondary publication through collaborative efforts of universities despite the absence of a formal SPO legal framework. However, there are more and more countries at the EU level, adopting formal republishing obligations for publicly funded researchers.^[2]

Context

During the consultations on the recent amendments to the Copyright and Neighbouring Rights Act (CNRA), stakeholders, including research and higher education institutions, advocated for comprehensive details on the proposed SPR regime. These discussions highlighted the need to address issues such as the format of secondary publications, the entities responsible for republishing, the repository requirements, the obligations of the author, and monitoring procedures.

Recognising these as distinct from copyright concerns, an opportunity to tackle these issues arose with the tabling of a proposal for a new Law on the Promotion of Scholarly Research and Innovation. This proposal provided a significant opportunity to enhance and clarify the regime of secondary publications. However, despite claiming that one of its objectives was to increase the transparency and public accessibility of research and innovation results, the government did not propose specific measures to achieve this goal. The explanatory memorandum mentioned that the aim was to introduce and promote open science principles for greater research system efficiency, easy access, preservation, and reuse of scientific data. Nonetheless, the proposal only offered an incomplete definition of open science. Moreover, contrary to the Operational Plan for the National Strategy for the Development of Scientific Research in Bulgaria (2017-2030), which called for a regulatory framework for open access policy between 2021 and 2025, such a framework remained largely undeveloped.

In response, between the first and second readings of the proposal in Parliament, an additional proposal was tabled to introduce more detailed regulations on open science. This proposal aimed to align the new law with existing strategic policy documents at both EU and national levels and sought to establish a comprehensive regime for immediate and unrestricted open access to publicly funded research results, their  reuse, and the development of open scientific infrastructure. This additional proposal underwent further negotiations among stakeholders under the Ministry of Education and Science’s guidance.

The final text of the law, which entered into force at the beginning of May 2024, introduces several key regulations regarding open access and the reuse of publicly funded research results:

General Open Science Regime

In Art. 3, the law proclaims its aim to promote open science while respecting intellectual property rights, and to facilitate broad access to scientific publications resulting from publicly funded research. It defines open science as the dissemination of research results and the provision of access to research data funded by public resources, reinforcing transparency and knowledge sharing.

The Minister of Education and Science is tasked with overseeing state policies that promote scientific research, including the development and implementation of a National Programme for Open Science. Furthermore, under Art. 76, the Minister of Education and Science, higher education institutions and scientific organisations shall promote open science by creating conditions for open access to, and use of, published results of scientific research funded in whole or in part by public funds.

Under Art. 37, projects seeking public funding must adhere to the principles of open science, as outlined in Art. 5. This includes providing access to research data and wide dissemination of research results for which public funding has been provided. Finally, the exact conditions for open access to publicly funded research results are to be determined by contracts between the research funding organization and the research performing organisation, as well as by institutional policies for open access and reuse adopted by relevant higher education or research institutions.

A Secondary Publication Obligation

For publications typically subject to copyright, the new Research Law introduces a SPO regime. In line with Article 60 of the CNRA, it mandates that authors of publications resulting from publicly funded research provide a digital copy of the publication or a version thereof for open access publication in a repository.

According to para. 2 of Art. 80 of the Research Law,

Unfortunately, during the final negotiations under the Science Ministry, some stakeholders adamantly opposed the use of the terms “open” and “re-use” in the law. This is why even though the proposed separate chapter entitled “Open Science” was left in the final version of the law, the wording of open access and secondary publication provisions is often vague and should be interpreted in connection with the other provision within the chapter on open science.

Thus, although the explicit referral to open access in the initial proposal for an SPO provision was removed from the final text of Art 80, para 2, in my view, one can confidently claim that by reading the provision in the context of the whole chapter, it can be established that publications are to be re-published in the Open Science Repository under open access.

Open Science Infrastructure

The new law also addresses the establishment of open science infrastructure, including institutional repositories within universities and research organizations, and a single central portal for open science at the national level. The Bulgarian Open Science Portal (BPOS) was appointed as such a central repository and access point, ensuring open access and long-term preservation. BPOS is currently operated by the National Centre for Information and Documentation (NACID). Built under the Operational Programme “Good Governance,” the portal has been functioning without a regulatory framework, except for a mention in NACID’s regulations. Formalizing its status and operation through legislation will help ensure its long-term sustainability.

Conclusion

In conclusion, while few EU Member States have yet enacted definitive legal obligations for republishing publicly funded research, there is a growing trend towards such measures. An obligation to republish, rather than a right, is seen by some open access proponents as a more effective means of ensuring knowledge dissemination and safeguarding public interest.

However, achieving the goals of open science more generally requires a balanced approach that integrates both SPR and SPO mechanisms, thereby preventing undue burdens on individual researchers and empowering research institutions to uphold open access principles robustly. The new Bulgarian Research Law positions the country as the first EU state to adopt a comprehensive legislative approach to secondary publications, incorporating both a right and an obligation to republish at the national level.

Still, while this top-down approach is essential, it alone will not guarantee the sustainable implementation of open science principles. Effective and consistent results require the regulatory regime to be supported by adequate state, funder, and institutional policies, fostering a broader embrace of open science values within the Bulgarian academic community.

^[1] The first jurisdiction that combined a statutory rights retention mechanism from the realm of copyright (SPR) with an obligation to republish (SPO) set in the law is, to a degree, Germany. However, while the SPR is federally regulated in the Copyright Act, the SPO is addressed in Baden-Württemberg’s State Higher Education Act, which mandates universities to require researchers to exercise secondary publication rights. Introduced in 2014, this law faced challenges, with law professors from the University of Konstanz suing over interference with academic freedom. The case is currently before the Federal Constitutional Court, focusing on whether such university obligations fall under federal or state legislative competence, rather than the substance of the SPO itself.

^[2] These are Spain (Art 37, para 2 of the Spanish Law 17/2022 on Science. Technology and Innovation); Germany (Section 44, para 6, Landeshochschulgesetz Baden-Württemberg); Italy (Art 4, para 2 of the Italian Law of October 7, 2013, n. 112, G.U. n. 236) and Slovenia (Decree No. 00704-212/2023 of 25 May 2023 on the implementation of scientific research work in accordance with the principles of open science, as per the Slovenian Scientific Research and Innovation Activities Act).

11 July 2024