RESOURCE(S)
INTRODUCTION
This document reports the results of a survey carried out to assess the impact of Technological Protection Measures (TPMs) on research, education and preservation in Europe (including the UK). In the context of legal ambiguity about the relationship between TPMs and exceptions to copyright, these results provide empirical data on current practices and needs of researchers and research support institutions such as libraries and archives. The survey was conducted with both individual researchers as well as institutions and the results are discussed separately for comparison. We identify major impediments to the socially vital functions of research, education and preservation, both inside and outside of institutions.
While article 6(4) of the CDSMD instructed Member States to “take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation provided for in national law … the means of benefitting from that exception”, this has taken different forms within the EU. Some jurisdictions have established formal mechanisms enabling beneficiaries of copyright exceptions to request access to TPM-protected materials while other states do not provide a clear means of access (See Report 1 by Rosborough, 2024). Libraries, archives and research support institutions would benefit from greater legal clarity about what they are permitted to do with works protected by TPMs. As would the students, researchers, members of the public, businesses, scientists, and others who depend on access to copyright materials to conduct their lawful and beneficial work. Given the ambiguous legal terrain, more precise data are needed to assess impact of TPMs on beneficiaries of exceptions and the uptake of formal processes to request removal where available.
This report assesses the current situation for researchers, libraries and archives that deal with copyright TPMs in material they own or access. Our study considers both perspectives: institutions seeking to provide access, and importantly the researchers who use copyright materials. The aim of this study is to ascertain whether copyright TPMs prevent institutions and researchers from carrying out their public roles, and the scale of any challenges encountered. We adopt a survey method to capture the widest range of perspectives possible from the target population of research institutions and users in the European Union, plus the UK. To our knowledge, our survey is the most comprehensive to date carried out with libraries and archives on their experiences with TPMs.
Based on the results of our survey we make the following recommendations:
1, We support the proposals by the DG RTD (European Commission, 2024) including addition of all research-related copyright exceptions to the list in Article 6(4) InfoSoc Directive, such as the temporary copying exception in Article 5(1) and the quotation right in Article 5(3)(d), both of which may have research and education applications.
2. We recommend adopting 72-hour time limits for responses from rightsholders to requests from beneficiaries of exceptions after which researchers should be legally able to seek other means of removing or circumventing TPMs.
3. We recommend a more robust and transparent processing and reporting system that logs TPM access requests and provides publicly available data on outcomes. A particular emphasis should be placed on redressing equity gaps identified in this research (e.g. smaller institutions and researchers without institutional support).
KEY TAKEAWAYS
1. Institutions widely reported that TPMs inhibited their core functions of research, lending, learning and teaching, as well as other activities such as text-and-data mining and bibliometric scraping.
2. TPMs were a major source of disutility for researchers, with 48% of institutions and 80% of individuals reporting they would avoid acquiring TPM-protected materials. 59.6% of individual researchers encountered online access restrictions, reporting them to be a major impediment to research.
3. Systems to request removal of TPMs are cumbersome, slow and under-utilised. Only 37% of institutions and 29% of individuals had made a formal request to a rightsholder to remove TPMs in order to benefit from an exception, with many reporting slow response times or no response at all.
4. The amount of time from request from a library to a publisher response varied widely, with 11.3% of requests settled in under 2 days, 25.7% of requests taking up to a week, 31.7% of requests taking up to a month and 20% of requests taking over 1 month to resolve.
5. The majority of libraries and researchers indicated that 72 hours or less was an acceptable wait time for a response from publishers, suggesting that the current situation in practice is not meeting expectations
6. Individuals and institutions reported low confidence in their understanding of the law around TPMs and copyright exceptions, with lowest confidence among the smallest institutions. A prominent finding is that institutions had limited human and technical resources to assess legal options or to engage with publishers to request removal of TPMs, and this is borne out in the low rate of interaction with rightsholders or government administrative processes.
VISUALISATION
WEBINAR
[*] Note: Figure 3 (p. 25), the text in the cut-off box for “images” should read: “3D Files — 7%”.
AUTHOR(S)
Kristofer Erickson
