Blog post by Stephen Wyber
At the top of the European Commission’s agenda to promote competitiveness is the dMomentum is building towards the European Research Area Act, a potential landmark piece of EU legislation which will place research front and centre of the bloc’s policy-making. Calls for evidence and studies are already underway, or due shortly, which will start to refine the list of issues that may appear in the draft Act to be published in the 3rd quarter of 2026.
In identifying these issues, a number of factors will come into play, relating for example to where the EU has competence, the complexity of revising the acquis in other areas of law, whether there is likely to be enough support politically, and of course whether a case can be made for action at the European level.
Knowledge Rights 21 already called for dedicated legislation for research ahead of the European Parliament elections last year, and so we have strongly welcomed the proposed ERA Act. In this, we have argued, there are a number of steps that are both feasible and necessary in order to achieve the goal of the free flow of research and knowledge throughout the European Union.
Focusing specifically on the question of the case for action at the European level, our main asks fall into two major categories:
- Measures which will correct flaws in existing EU acquis
- New measures where EU action is essential to ensure adequate harmonisation of national provisions
Correcting: The Era Act as a Chance to Do Better for Research
While EU legislation focused on research is a relative novelty, regulations and directives that impact upon research are certainly nothing new. The problem has been that such laws, traditionally, have not taken much account of the needs and realities of research and researchers. The result is rules which may be helpful in other fields, but which do not serve research well, despite this being a major policy and financial priority for the EU.
Perhaps the most obvious example is the exception for research included in the 2001 InfoSoc Directive. This is undermined by being optional (Member States can choose to implement it, and not all have), confusing (it is not clear if it applies to ‘research’ or just ‘illustration for research’), and being restricted to non-commercial research (thereby excluding researchers in working in partnerships). In doing so, the EU directly undermines its own investments in knowledge valorisation.
A clear and mandatory research exception is the only effective way forward: one that is adaptable to change, while still grounded in fairness.
However, there are plenty of other pieces of legislation that include restrictive or inconsistent terms related to research, adding complexity and challenges to researchers’ work. The major research report published by the European Commission’s Directorate-General for Research, Technology and Development last year not only highlighted the challenge with the research exception set out above, but also the problems with Europe’s numerous laws around data.
As highlighted in the major report released by the Directorate-General for Research, Technology, and Development last year, a number of issues arise from inconsistencies across the EU’s digital and data legislation, both in definitions and application. It highlights the value of a single approach to data access for researchers, rather than the far more complex landscape in place today.
Improving: The Era Act as a Chance to Take the European Research Area up a Gear
While, as highlighted above, the EU has already intervened in many areas that impact research, there are still others where the problem is more the absence of action. This leaves room for mismatched national laws to emerge, creating an administrative headache for collaborative cross-border projects.
The chief example of an area where new action from the EU is needed is the introduction of a Secondary Publication Right. This serves to protect researchers and their institutions from losing the ability to publish their work open access when signing contracts with publishers. Currently, even when researchers have an obligation from their funder to make their work publicly available, it can be hard to resist the pressure to sign away rights.
Already over a quarter of EU Member States have a Secondary Publication Right, but these all differ from each other, meaning that it can be unclear what rules apply when a project involves researchers from more than one country. EU-level intervention would not only resolve these inconsistencies, but also encourage wider adoption of such rights.
A further step would be to clarify the rights of researchers to share content when collaborating with partners across borders. Once again, only EU-level action can guarantee this possibility, either through full harmonisation (unlikely) or through a legal fiction or other form of interoperability. As the European Degree develops, such possibilities will likely be essential to ensure that all students have the same access to learning materials.
Finally, another area that the EU may consider is how to ensure that research institutions do not end up on the wrong side of unfair contract terms for digital content. Currently, these institutions fall between the gaps between consumer and competition law (which protect individual people and companies respectively), and even when faced with unequal terms, can do relatively little about it. Such terms, in particular, can create barriers to collaboration or the sharing of resources, even in ways that would be permissible with physical materials.
The case for introducing such provisions at European level stems from the EU’s existing engagement in consumer law (which focuses on ensuring that there is a basic level of protection across Member States), as well as the need to ensure that institutions across Europe are similarly enabled to contribute to goals such as research and education. Furthermore, other countries such as Singapore have already extended such protections.
Conclusion
Getting the EU’s copyright, digital and data legislation right is a key pillar of any wider effort to achieve the goal of the free circulation of research throughout the EU – the ‘fifth freedom’ promoted by Enrico Letta in his landmark report last year.
As this blog outlines, the ERA Act offers a vital opportunity not just to fix existing legislative obstacles to knowledge sharing, but also to build a stronger, more coherent framework for research collaboration across Europe.
After many commitments in the past to complete the European Research Area, we are now ready to work with partners and lawmakers to ensure that this opportunity leads to real, meaningful progress.
11 June 2025
