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]]>Dear Members of the European Parliament,
The European Parliament has a crucial role to play in the ongoing Digital Omnibus process: protecting the use of open standard licences for public sector information.
While the Digital Omnibus seeks to simplify EU digital legislation, it also introduces a subtle but far-reaching change to Europe’s public sector information framework. The proposal allows public sector bodies to impose actor-specific licence conditions on different categories of users.
This would represent a fundamental departure from the Open Data Directive, a key accomplishment of EU policy that has been refined over the course of over twenty years.
Unfortunately, the draft report by the main committees ITRE and LIBE as well as IMCO’s draft opinion fail to address this highly problematic change, and while JURI’s draft opinion addresses the issue, the proposed solution falls short.
Open standard licences are a cornerstone of open government
The EU itself promotes the use of standard open licences because they maximise legal certainty and interoperability while minimising transaction costs.
A common framework for reusing public sector information delivers significant benefits:
- Better access to reliable information: High-quality public sector information can be freely reused by open knowledge projects such as Wikipedia, Wikidata and OpenStreetMap, as well as countless other public-interest applications that reduce dependence on proprietary platforms.
- Greater government transparency: Openly licensed public sector information strengthens accountability, democratic participation and trust in public institutions.
- Research and innovation: Official statistics, environmental information, and cultural heritage collections are essential inputs for scientific research and European technological innovation. Making these resources legally more difficult to reuse would only widen Europe’s innovation gap.
Differentiated charging for access, not differentiated licensing
The objective of ensuring that very large companies contribute fairly to the provision of public services should be achieved through differentiated charging for access.
Where access to public sector information is controlled through technical means, such as APIs, differentiated pricing is both feasible and appropriate. A number of cultural heritage institutions already manage access to their collections in this way to recover the costs of making data available or infrastructure costs associated with intensive automated access by AI crawlers.
However, imposing differentiated licensing conditions for very large companies has the unintended consequence of hindering re-use by everyone. We urge lawmakers to continue promoting the use of open standard licences. Replacing them with bespoke or actor-specific licences would undermine legal certainty and interoperability. This would increase costs for all users, forcing researchers and start-ups to navigate different legal terms or negotiate individual permissions with often under-resourced public institutions. It would prevent public-interest projects such as Wikipedia, Wikidata and OpenStreetMap from reusing public sector information altogether.
We therefore call on Members of the European Parliament to remove the possibility for actor-specific licence conditions (in Article 32r(4)) and strengthen the requirement to use standard open licences (in Article 32r(3)).
Sincerely,
COMMUNIA – International Association for the Public Domain
ANSOL – Associação Nacional para o Software Livre
ApTI – Asociatia pentru Tehnologie si Internet
CNR Area territoriale di ricerca di Bologna – Biblioteca Dario Nobili
Creative Commons – German Chapter
D3 – Defesa dos Direitos Digitais
Digitale Gesellschaft e.V. (added after the deadline)
EIFL (Electronic Information for Libraries)
epicenter.works – for digital rights
GFOSS – Open Technologies Alliance
GLAM-E Lab (added after the deadline)
Musiikkiarkisto – Music Archive Finland
onData APS (added after the deadline)
Open Data and Intellectual Property Institute – ODIPI
Open Knowledge Foundation Deutschland
Open Knowledge Foundation France
Xnet – Institute for Democratic Digitalisation
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]]>The post New study: Copyright challenges in open-source AI development in the European Union appeared first on COMMUNIA Association.
]]>The report, titled Copyright challenges in open-source AI development in the European Union (available as a PDF file), provides empirical evidence on how current text and data mining (TDM) exceptions established by the Copyright in the Digital Single Market Directive (CDSMD) operate in practice. Based on eight in-depth interviews with technical leads and data experts from prominent European AI projects—including OpenEuroLLM, Pleias, PLLUM, and SOOFI—the study maps the operational bottlenecks that hinder public-interest technology
The Copyright in the Digital Single Market (CDSM) Directive contains two mandatory exceptions for TDM. Article 3 permits research organisations and cultural heritage institutions to conduct TDM for scientific research. Meanwhile, Article 4 permits general-purpose TDM but allows rightsholders to implement an “opt-out” mechanism. The study highlights that this distinction creates structural friction. Because publicly funded projects are often mandated to open source their models—allowing for broad reuse, including commercial applications —university legal teams frequently advise against relying on Article 3, with its research scope. As one interviewee noted:
The fact that we are a scientific institution didn’t give us the right to operate solely under Article 3, because purpose matters.
Consequently, public-interest teams routinely shift to the more restrictive Article 4 framework. Under this regime, developers must invest computational and financial resources to parse unstandardised opt-outs. As the report points out:
There’s no standard formula – unlike, say, a pharmaceutical disclaimer with a fixed legal form that everyone recognises. Restriction notices appear in all kinds of forms. This raises a key question: which form is sufficient to consider a reservation valid, and which is not?
Policy Recommendations: Securing the Future of Open Science
To ensure that European public-interest AI can scale, the authors of the study outline a series of targeted policy interventions aimed at lowering these barriers:
- Clarify the scope of TDM exceptions: EU law must explicitly confirm that the training and development of AI systems constitute legitimate text and data mining activities protected under both Article 3 and Article 4. In addition, the EU legislator must clarify that open sourcing of LLMs and their components is already fully permitted under Article 3 DSM and does not disqualify the institution from the scope of scientific research and TDM exceptions.
- Introduce a statutory right to share: policymakers should strengthen Article 3 by introducing a clear right permitting scientific research institutions to host, share, and republish curated training datasets for validation and peer review.
- Establish good-faith “safe harbors”: researchers and public-interest intermediaries who follow standard procedural compliance protocols must be legally protected from statutory copyright claims and liability.
- Develop a European public training corpus: Europe needs to invest in digital infrastructure by building shared, high-quality public training corpora. This would bring the data-sharing goals of the CDSM Directive into practical operation.
For European digital sovereignty to move from rhetoric to reality, the copyright framework must actively protect public-interest innovation rather than penalising it with legal exposure. A balanced digital ecosystem requires robust rights that treat open science and shared knowledge as vital common goods.
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]]>Towards a maximum exclusivity period
Amendment 30 to Article 32k(3) tries to address a long-standing weakness in the Open Data Directive. Under the current framework, exclusive arrangements for the digitisation of cultural resources should “in general” not exceed ten years. In practice, this formulation has proven too weak and it has allowed long-term exclusive arrangements to persist, often without review or meaningful public scrutiny. As a result, an estimated 2 million Public Domain books are currently under exclusivity.
The draft report takes an important step in the right direction. It replaces the current aspirational language with the rule that exclusivity “shall not exceed 10 years”, and it goes even further by reducing the maximum period to five years for very large enterprises designated as gatekeepers under the Digital Markets Act. However, it stops short of establishing a maximum duration. While it provides that no renewal or extension shall be permitted unless the public sector body demonstrates that continued exclusivity remains “strictly necessary, proportionate, and in the public interest”, it nevertheless leaves the possibility of renewal on the table. This is certainly an improvement over the current framework, but if the objective is to ensure that exclusivity remains exceptional and temporary, the cleaner solution would simply be to prohibit renewals altogether.
Exclusive digitisation agreements exist to allow a private partner to recover the costs of digitisation. Once the agreed maximum period has expired that objective should be considered fulfilled. At that point, the public interest should shift decisively towards unrestricted access and re-use. Allowing renewals, even under stricter conditions, risks recreating precisely the uncertainty and prolonged exclusivity that the amendment is trying to address. Removing the renewal clause altogether would provide more legal certainty.
Protecting the Public Domain from re-enclosure
The amendment also introduces two other important safeguards. First, it states that digitised cultural resources that are in the Public Domain shall remain in the Public Domain after digitisation. This makes clear that digitisation partnerships cannot be used as a mechanism to re-enclosing materials that belong to everyone, reflecting the same principle enshrined in Article 14 of the DSM Directive.
Second, the amendment also clarifies that contractual terms may not be used to extend the practical effects of exclusivity beyond the period permitted by law. In other words, they cannot be used to continue restricting the re-use of digitised Public Domain materials after the lawful exclusivity period has ended. This is in line with the existing obligation that the digitised copy provided to the public sector body must be available for re-use once exclusivity expires.
Taken together, these elements represent a strong improvement, bringing Article 32k(3) closer to the underlying purpose of the Open Data Directive: digitisation should increase access to the Public Domain, not create new legal or contractual barriers to its re-use.
The missing piece: open licences
While the draft report takes an important step on exclusive agreements, it does not address the open licensing problem in the Digital Omnibus industry proposal. This is a significant omission.
The Commission proposal introduces the possibility for public sector bodies to establish special conditions for the re-use of data and documents by very large enterprises. The stated objective is understandable, as very large commercial actors derive substantial value from public sector data and public institutions should be able to recover costs or require contributions to the sustainability of data infrastructures. But this objective should be pursued through differentiated charging for the supply of data, not through differentiated licensing conditions for re-use.
Open government data depends on a simple principle: once public sector information is made available for re-use, everyone receives the same permissions. Standard open licences provide legal certainty and reduce transaction costs. At the same time, allowing public sector bodies to move away from open licenses is not necessary to make very large enterprises pay more. Public sector bodies can charge for access services, bulk downloads, APIs, etc while keeping the underlying data available under open licences. Charging and licensing serve different purposes and should remain separate policy tools.
The draft report should therefore be amended to preserve standard open licences as the default in Article 32r. Without such amendments, the Digital Omnibus risks undermining the approach that has made the EU open data framework valuable not only for research and innovation, but also for building citizen trust and helping them make informed decisions.
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]]>The post JURI rapporteur tries to save open government data, but gets the solution wrong appeared first on COMMUNIA Association.
]]>What the draft opinion gets right: defending open data principles
The draft opinion correctly identifies the importance of maintaining the current open data ecosystem that enables public sector information to flow freely across use cases. Amendment 58 strengthens Article 32r(2) by clarifying that conditions attached to the re-use of public sector information shall not undermine “the principle of open data as freely reusable for any purpose.” Amendment 59 improves Article 32r(3) by requiring that standard licences used by public sector bodies should, by default, be “open licences enabling free and unrestricted re-use.”
By reaffirming the principle of non-discriminatory re-use of public sector data and documents, the rapporteur re-aligns the Digital Omnibus with one of the foundational principles of the Open Data Directive. And by expressly requiring the use of open licences, the draft opinion goes a step further than the Directive, which merely encouraged the use of standard licences.
These are positive improvements that reflect an important understanding: standard open licences are a key driver of research and innovation, because they provide legal certainty, eliminate transaction costs, and enable the interoperability of information originating from different public sector sources. Unfortunately, that understanding disappears in the very next amendment.
What the draft opinion gets wrong: open licences and special re-use conditions cannot coexist
While the rapporteur’s amendments to Article 32r(2) and (3) defend open data and open licensing principles, its amendments to paragraph 4 retain the Commission’s proposal allowing public sector bodies to establish “special conditions for the re-use of data and documents by very large enterprises”.
This creates a fundamental contradiction. Open data is based on the principle that everyone receives the same permissions to re-use information. Standard open licences such as CC0 and CC BY grant universal rights that are not dependent on who the user is. The moment a public sector body introduces actor-specific conditions for certain categories of users, the licence is no longer open in the traditional sense.
To its credit, the rapporteur attempts to shield certain categories of users from the negative consequences of differentiated licensing. Amendment 60 specifies that any special conditions imposed on very large enterprises should not “restrict or negatively affect re-use by research organisations, non-commercial users, or open knowledge projects.” However, this safeguard does not solve the underlying problem.
If public sector bodies are permitted to establish special conditions for “very large enterprises”, they will inevitably move away from standard open licences and towards customised, conditional licensing arrangements. They cannot simultaneously make public sector information available under open licences and reserve the right to impose special re-use conditions on selected users.
The way forward: differentiated charging, not differentiated licensing
The good news is that policymakers do not need to choose between preserving open licences and addressing concerns about the market power of very large enterprises. Public sector bodies can legitimately charge very large enterprises more for access services such as APIs, bulk downloads, or other forms of data supply.
Charging and licensing serve different purposes and should remain separate policy tools. By focusing on the conditions for supplying data rather than the conditions for re-using data, legislators could address concerns about economic asymmetries without undermining the foundations of the open data framework. Such an approach would allow governments and public institutions to capture more value from large commercial actors while preserving the legal certainty and interoperability provided by standard open licences.
A missed opportunity: fixing exclusive agreements
The draft opinion also misses an important opportunity in another area: exclusive digitisation agreements involving Europe’s cultural heritage collections.
The Digital Omnibus incorporates the existing Open Data Directive rules governing exclusive arrangements for the digitisation of cultural resources. Yet the current framework has proven ineffective in practice. While the Directive states that exclusivity periods should “in general” not exceed ten years, there is no evidence that existing agreements have been reviewed as required, and some arrangements continue to grant long-term or even perpetual exclusive rights. As a result, an estimated two million Public Domain books from European library collections remain subject to exclusivity restrictions that prevent broader access and re-use, including for AI training purposes.
The Digital Omnibus provides a timely opportunity to address this weakness and expand access to valuable Public Domain materials held by Europe’s cultural heritage institutions. A straightforward amendment to Article 32k(3) could replace the current principle that exclusivity periods should “in general” not exceed ten years with a binding 10-year ceiling. This would prevent indefinite extensions of exclusive arrangements and ensure that digitised Public Domain works become genuinely available for re-use after a reasonable period.
Edit notice: An earlier version of this blog post incorrectly stated that the JURI Committee had adopted the draft opinion discussed above. The document is in fact the rapporteur’s draft opinion and has not yet been adopted by the Committee. We have updated the text accordingly.
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]]>The post Barriers to Research: Insights into the Patchwork of Research Exceptions in European Copyright Laws and Practical Perspectives from European Researchers appeared first on COMMUNIA Association.
]]>Research today is international, digital, data-intensive, and collaborative by default. Scientists routinely work across borders, rely on access to large collections of publications and data, use computational methods such as text and data mining (TDM), and increasingly incorporate AI tools into their research workflows. Yet the legal framework governing access to and use of copyrighted materials remains fragmented along national lines.
Our findings show that, despite decades of copyright harmonisation efforts at the EU level, researchers across Europe still operate within a highly fragmented legal environment, resulting in legal uncertainty and unnecessary obstacles to scientific research. Through a comparative analysis of 28 European jurisdictions and interviews with researchers and legal experts, we found that the current system often forces researchers to navigate conflicting national regulations, unclear exceptions, restrictive licensing practices, and varying interpretations of what is legally permitted. The findings challenge one of the core assumptions underlying EU copyright policy: that harmonisation has created a common legal environment for research. In reality, the opposite appears to be true.
Openness Index of Research Exceptions
Using the newly developed I-REx (Index of Research Exceptions), we found that all EU Member States have implemented research exceptions more restrictively than required under EU law. The index assessed ten copyright exceptions that are particularly relevant for scientific research, including the research exception under Article 5(3)(a) of the InfoSoc Directive, research exceptions for copyright-protected and sui generis databases, the research exception for neighbouring rights, as well as supplementary exceptions such as quotation, private copying, reproductions by libraries, educational establishments, museums and archives, dedicated terminals, reprographic reproduction, and the TDM exception for scientific research. The I-REx measures the openness of copyright systems towards scientific research: the higher the score, the more restrictive the legal framework and the narrower the scope of research uses permitted under copyright exceptions. Conversely, lower scores indicate more open and research-friendly copyright regimes. While the EU framework establishes a minimum standard intended to support research activities, national legislators have frequently introduced additional conditions, limitations, and procedural requirements that narrow researchers’ freedoms. As a result, the average level of restrictiveness across Member States is more than twice as high as the baseline level represented by the EU standard itself.
The consequences are significant. Activities that are clearly permitted in one jurisdiction may be prohibited, or at least legally uncertain, in another. As a result, cross-border research collaborations often operate under a constant cloud of legal uncertainty. In practice, international research consortia frequently need to align their activities with the most restrictive legal regime among participating countries, effectively reducing the scope of lawful research for everyone involved.
Perhaps most strikingly, our case-study analysis revealed that even copyright experts frequently disagreed about the legality of common research activities. Across ten typical research scenarios assessed by experts from 21 European countries, there was no clear consensus on whether many activities were permitted or prohibited. Experts from different countries reached markedly different conclusions when assessing identical research scenarios, highlighting not only the diversity of national implementations but also the broader lack of legal certainty surrounding research uses. If legal specialists struggle to determine what the law allows, it is unrealistic to expect researchers themselves to navigate these complexities with confidence.
Evidence from researchers
The qualitative research paints a similar picture. Researchers often perceive copyright not as a tool that supports science, but as a source of uncertainty and practical obstacles. Many reported receiving little or no formal training on copyright law and instead relying on informal practices, professional networks, and institutional workarounds to access and share research materials.
A particularly striking finding was the prevalence of a “greater good” mindset. Many researchers view the creation and dissemination of knowledge as a societal mission that outweighs restrictive or unclear copyright rules. As a result, they sometimes prioritise scientific collaboration and access to knowledge over strict legal compliance, operating in legal grey areas when copyright law is perceived as incompatible with legitimate research needs. Participants also highlighted that copyright regulation has not kept pace with contemporary research practices, especially in areas such as Artificial Intelligence, Machine Learning, and Text and Data Mining. Overall, the findings point to a growing disconnect between existing copyright frameworks and the realities of modern, digital, and collaborative research.
Fragmentation creates barriers to research
Europe cannot build a competitive and innovative research ecosystem while maintaining legal fragmentation of this scale. Rather than supporting scientific activity, the current framework often pushes researchers into legal grey areas, where routine and socially valuable research practices exist in a state of uncertainty. Instead of enabling the production and dissemination of knowledge, copyright rules frequently require researchers to spend time assessing legal risks, interpreting complex and divergent regulations, and worrying about the legality of everyday research activities. This shifts attention and resources away from scientific inquiry itself and places an unnecessary burden on those whose primary role should be to generate new knowledge, not to navigate a fragmented and unpredictable copyright landscape.
Such a system is also difficult to reconcile with broader European and global policy objectives, including the UN Sustainable Development Goals. Scientific research is widely recognised as a key driver of innovation, education, public health, and evidence-based policymaking. Legal frameworks that create barriers to access, collaboration, and knowledge exchange ultimately undermine efforts to advance sustainable development and address global challenges. Rather than facilitating the production and circulation of knowledge as a public good, the current copyright framework too often hampers the very research activities needed to support inclusive and sustainable social, economic, and technological progress.
Policy recommendations
We therefore call for concrete reforms at both the national and EU levels.
In the short term, Member States should fully implement research exceptions in line with the scope permitted by EU law, without introducing additional national restrictions that undermine their effectiveness. Research exceptions should be protected against contractual override, and uses that are lawful in one Member State should be recognised as lawful throughout the EU (European Standard+).
In the longer term, Europe needs a mandatory and fully harmonised research exception that genuinely reflects the realities of contemporary scientific research (Enhanced Exception for Scientific Research).
As proposed in our report, such an exception should:
- Permit the use of copyrighted works and other protected subject matter for scientific research purposes across the EU.
- Apply regardless of national borders, ensuring legal certainty for cross-border research collaborations.
- Prevent contractual terms, including choice-of-law and jurisdiction clauses, from overriding researchers’ rights.
- Allow researchers to circumvent technological protection measures when necessary to benefit from the exception
More broadly, the EU should recognise that scientific knowledge is a public good and that copyright law must support, rather than hinder, the creation, sharing, and reuse of knowledge. A genuine European Research Area requires a legal framework that prioritises research, collaboration, and innovation over legal fragmentation and uncertainty.
The right to research should not depend on where a researcher is located. It should be guaranteed throughout Europe. The ongoing work on the European Research Area Act (ERA Act), together with the ongoing evaluation of the CDSM Directive, offers a timely opportunity to embed this principle in EU law and policy. If the EU is serious about establishing research as the “fifth freedom” of the internal market, the ERA Act should include safeguards ensuring that intellectual property frameworks, including copyright law, actively enable rather than constrain scientific research. The right to research must become a core component of the European Research Area.
Footnotes
- The data used in the report was gathered and analysed thanks to the support of Knowledge Rights 21. Its publication was made possible thanks to COMMUNIA.
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]]>The post Our response to the Commission’s call for evidence on the future of EU copyright appeared first on COMMUNIA Association.
]]>Our contribution draws on a growing body of evidence collected over the last two years from researchers, cultural heritage institutions, open-source AI developers and legal experts across Europe. Together, this evidence demonstrates that, while the DSM Directive introduced important improvements, researchers, cultural heritage institutions and public-interest AI developers continue to face barriers created by fragmented research exceptions, legal uncertainty as to the scope of application of the TDM exceptions, unfair licensing practices and technological restrictions. Publicly funded research outputs remain locked behind paywalls, while Public Domain materials are increasingly subject to new forms of exclusivity, limiting their availability for scientific research and innovation. At the same time, public-interest information infrastructures bear growing costs of supporting AI development without sharing in its economic benefits.
COMMUNIA’s response (see PDF here) thus argues that any future legislative initiative to support a competitive European knowledge economy should pursue three complementary objectives: increase the availability of high-quality knowledge resources, provide legal certainty for those who use them, and ensure the sustainability of the institutions that maintain them.
Increase the availability of knowledge resources
Scientific excellence, innovation and AI development all depend on the availability of high-quality resources that can be freely accessed, reused and built upon. COMMUNIA proposes to increase the availability of valuable knowledge resources through measures that ensure broad access to publicly funded research and strengthen safeguards for the Public Domain.
Evidence collected by the Commission shows that the prevailing scholarly publishing model frequently prevents researchers from making their own publications openly available and, as a result, a significant share of publicly funded research remains locked behind paywalls. To address this issue COMMUNIA calls for measures to establish a harmonised EU framework ensuring open access to publicly funded research outputs. Such a framework should combine a secondary publication obligation with a mandatory secondary publication right that allows authors to republish their research outputs through open-access repositories regardless of contractual arrangements with publishers.
COMMUNIA also calls for stronger safeguards for the Public Domain. Our research shows that, in several Member States, cultural heritage laws continue to create quasi-copyright restrictions over Public Domain artworks. In addition, based on available evidence, we estimate that at least two million books remain unavailable for AI training and other computational uses because of exclusive digitisation agreements. These restrictions undermine both access to culture and Europe’s ambitions to make cultural heritage collections available for AI development. In our response, we call for measures to prevent Member States from imposing authorisation requirements, remuneration obligations or equivalent restrictions that undermine the practical effect of Article 14 DSM. In addition, the Union should consider extending the logic underpinning this provision to other categories of works beyond visual art where similar risks of re-appropriation arise.
Strengthen legal certainty for research and public-interest AI
A recurring theme throughout our evidence base is legal uncertainty. Researchers and Public AI developers report difficulties sharing materials, collaborating across borders and relying on the scientific TDM exception for open-source and publicly funded AI projects. Libraries encounter licensing agreements that restrict research rights (including TDM and AI uses) and impose disproportionate liability for the conduct of users. Cultural heritage institutions more broadly often adopt excessively cautious approaches because of fears of liability.
To address these issues, COMMUNIA proposes a package of measures that includes:
- a general scientific research exception with cross-border effect;
- measures to prevent unfair licensing practices;
- measures to assert the overriding mandatory nature of research exceptions and protect them against choice-of-law agreements;
- stronger protections against technological overrides of research rights;
- and a limitation of liability for knowledge institutions acting diligently and in good faith.
Ensure the sustainability of the information ecosystem
The debate about AI and copyright has largely focused on the relationship between AI developers and copyright holders. While this discussion is important, it overlooks a broader reality. Commercial AI systems derive value from a much wider information ecosystem that includes scientific repositories, cultural heritage collections, Wikipedia and other open-access knowledge projects.
Many of these infrastructures are maintained through public funding or voluntary contributions and do not generate licensing revenues. At the same time, the institutions and communities that produce and maintain the underlying resources face rising costs associated with hosting, preservation, curation, digitisation, cybersecurity, infrastructure maintenance and AI-related traffic management, while receiving little or no compensation from the commercial deployment of AI systems.
COMMUNIA therefore calls on the Commission to explore mechanisms that would ensure that commercial AI systems that are deployed within the Union and that have been trained on publicly available information contribute to the sustainability of the information ecosystem on which they depend.
EDIT: A previous version of this blogpost had a link to COMMUNIA’s preliminary response to the call for evidence. On 24 June 2026, we replaced it with the final submission.
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]]>The post Video Recording of Copyright Liability and the Knowledge Ecosystem appeared first on COMMUNIA Association.
]]>The event opened with an update on the European Commission’s ongoing work on copyright from Lars Frietman (DG CONNECT, European Commission), including the DSM Directive survey and the targeted initiative for a better copyright for European creativity and innovation. It also marked the launch of a new IViR research publication examining legal uncertainty and risk mitigation in the European copyright framework. The day concluded with reflections from MEP Sergey Lagodinsky on the broader societal implications of AI, the need for a measured approach to future regulation, and the importance of supporting public interest institutions and Europe’s digital sovereignty objectives.
You can now watch the full recording of the event below.
Public AI developers and copyright: where legal uncertainty starts
The first panel examined how copyright uncertainty affects the development of public interest and open source AI systems in Europe.
The discussion was introduced by Paul Keller (Open Future/COMMUNIA), who presented an ongoing research project on sources of legal uncertainty affecting public-interest AI development. The panel discussion brought together Jan Hajič (Charles University Prague) and Anna Leschanowsky (Fraunhofer IIS / Soofi – Sovereign Open Source Foundation Model Initiative), and was moderated by Paul Keller.
The discussion highlighted a growing mismatch between the European Union’s ambition to foster sovereign and public-interest AI ecosystems and the practical realities of the current copyright framework. While the DSM Directive introduced text and data mining (TDM) exceptions intended to support innovation, participants stressed that these provisions often fail to provide sufficient legal certainty for publicly funded and open source AI initiatives.
A central theme was the relationship between the DSM Directive’s research TDM exception (Article 3) and the broader TDM exception (Article 4). Public interest AI projects increasingly develop models that are intended to be openly shared and reused by European SMEs, researchers, and public administrations. Yet uncertainty about whether downstream commercial reuse may affect eligibility under Article 3 pushes many open source projects toward the more restrictive Article 4 framework.
Panelists also discussed the substantial operational costs generated by legal uncertainty. Public-interest developers often invest significant resources in copyright compliance, metadata verification, opt-out detection, and legal review. These burdens are particularly acute for smaller actors and projects working with less-resourced European languages. In some cases, uncertainty leads developers to adopt precautionary measures that go beyond what the law requires, limiting data sharing and reproducibility practices that are essential to open science.
Cultural heritage institutions and copyright: where legal risk should end
The second panel shifted the focus to cultural heritage institutions.
The discussion opened with a presentation by Martin Senftleben (Institute for Information Law (IViR), University of Amsterdam), who presented new research on legal risk mitigation measures for knowledge institutions. He was joined by Dyveke Sijm (Royal Danish Library) and Stephen Wyber (IFLA) for a panel discussion moderated by Teresa Nobre.
Participants noted that one of the main obstacles faced by these institutions is no longer the absence of copyright exceptions. Instead, the challenge lies in the difficulty of relying on existing exceptions with sufficient legal certainty and operational confidence.
The panel also explored how uncertainty creates a powerful chilling effect. Libraries and cultural heritage institutions frequently adopt highly risk-averse approaches, not because copyright law clearly prohibits a particular activity, but because the potential legal consequences of relying on copyright flexibilities remain difficult to assess. This often results in defensive compliance, where institutions refrain from lawful activities or accept restrictive contractual terms rather than challenge them.
Against this backdrop, participants argued that future copyright reform should focus not only on creating exceptions, but also on ensuring that institutions can rely on them in practice. The discussion highlighted a range of legal risk mitigation measures proposed in the IViR study, including safeguards against unfair contractual terms imposed on public interest institutions, clearer rules on applicable law and jurisdiction, and limitation-of-liability protections for institutions acting diligently and in good faith.
From rights on paper to rights in practice
Although the two panels focused on different sectors, they converged on a common message: legal uncertainty imposes real costs on public-interest actors across the knowledge ecosystem.
Whether developing open-source AI models, preserving cultural heritage collections, or enabling access to knowledge, institutions increasingly face situations where the law appears to permit an activity, yet the associated legal risks make reliance on that permission difficult in practice. Addressing this challenge will require more than expanding copyright exceptions. It will also require mechanisms that reduce legal risk, increase predictability, and allow public-interest actors to operate with confidence.
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]]>The post New IViR Study: Towards a Digital Knowledge Act – Mapping Policy Options to Mitigate Legal Risks for Teaching, Learning and Research appeared first on COMMUNIA Association.
]]>Under the Charter of Fundamental Rights, EU legislation is bound to create a favourable, enabling environment for teaching, learning and research. To achieve this goal, a copyright system is needed that supports the work of knowledge institutions. The Study demonstrates that current EU copyright law needs to be recalibrated to offer a solid basis for the work of knowledge institutions:
- copyright exceptions for teaching, learning, research and cultural heritage work are narrowly circumscribed, raising the question whether a given form of use falls within the scope the statutory use permission;
- even if a copyright exception potentially applies, rightsholders can destabilise the invocation of the copyright exception by doubting full compliance with the open-ended criteria of the three-step test;
- technological measures may make it impossible to rely on use privileges set forth in copyright exceptions;
- contract terms may reign supreme over exceptions and become the main instrument governing access and use of knowledge resources.
Against these conditions, the Study proposes a reform package aimed at restoring predictability of legal outcomes and trust in statutory use privileges and the copyright framework as an enabling environment for educational, scientific and cultural heritage work. Each mechanism responds to a distinct driver of risk, consisting of interpretive ambiguity, bargaining asymmetry, liability exposure, or cross-border complexity. Yet they are mutually reinforcing. Their combined effect would be to move knowledge institutions away from an approach where they avoid relying on use privileges in the EU copyright acquis, towards a proactive engagement with copyright law.
Develop sector-specific best-practice guidelines
The Study demonstrates that uncertainty often arises not from the absence of legal norms that grant knowledge institutions specific use privileges, but from difficulties in interpreting existing ones. Practice-oriented guidelines can translate abstract, complex legal requirements into clear, manageable compliance protocols. They may be developed around use case archetypes that mirror recurrent institutional practices, such as scraping and web harvesting, digitisation and long-term preservation of collections, large-scale TDM on licensed and own resources, cross-border data sharing and transnational teaching programmes. For each archetype, the guidelines could map the relevant provisions and propose decision trees and diligence checklists. They would have a preventive function by steering projects through lawful pathways before they begin, and a defensive function by documenting the steps taken to demonstrate diligence if questions arise later.
Best-practice guidelines can derive their authority from transparency as to the roles and positions of experts involved in the process, balanced drafting, and continuous updating. They should include illustrative examples of lawful conduct and develop diligence criteria in the light of the various tasks and user expectations that shape the work of knowledge institutions.
Establish a copyright advisory and dispute settlement body
As a second measure, the Study proposes to address the lack of authoritative, timely interpretation of the norms impacting the work of knowledge institutions. Legal uncertainty persists not only because copyright norms are complex but also because litigation is often avoided. Instead of openly entering into a dispute, knowledge institutions may internalise copyright conflicts and finally “resolve” them through over-compliance and quiet withdrawal from planned activity. Knowledge institutions are not looking for yet another forum for adjudication but for a trustworthy, authoritative source of interpretive guidance that provides operational support to all stakeholders involved.
Accordingly, we recommend the establishment of a Copyright Advisory Body for the Educational, Scientific and Cultural Heritage Sector composed of independent experts with a mandate to issue non-binding yet reasoned opinions and to coordinate interpretive standards across Member States. The advisory opinions should lead to a solid corpus of “soft precedent” that organically leads to greater predictability of copyright outcomes within the sector.
Introduce a liability privilege for staff of knowledge institutions
Institutional caution in complex copyright and contractual matters is often driven by the fear of exposure to substantial damage claims and reputational harm, causing overcompliance and, potentially, also abandonment of activities. A liability exemption for diligent staff acting in good faith could shift this risk calculus while preserving incentives for diligence. The exemption should apply when staff act within their institutional mandate and in good faith, having demonstrably exercised sufficient care. This approach would encourage knowledge institutions to adopt clear and robust policies with regard to copyright and contractual diligence as their liability would be contingent on being able to demonstrate that staff operated under appropriate procedures.
The liability privilege could be linked to compliance with best practice guidelines or advisory opinions. That way, the mechanism would create a positive compliance feedback loop whereby knowledge institutions that systematise internal governance are rewarded with greater certainty. This approach recognises that the fear of infringement is not solely economic but also institutional, rooted in the reputational sensitivity of public bodies and their hierarchical accountability structures that is additionally derived from the often public law character of such institutions.
Adopt country-of-origin rules for defined research uses
The 2019 Directive on Copyright in the Digital Single Market has introduced a country-of-origin rule with regard to digital cross-border teaching activities. This principle should be extended to research activities relying on copyright exceptions in order to enhance legal certainty for transnational research consortia. Cross-border collaboration increases the complexity and legal uncertainty evolving from divergent national implementations of optional copyright exceptions for scientific research. A given act of use may be lawful in the light of copyright exceptions adopted in one Member State and infringing in another which did not introduce a congruent use privilege. A country-of-origin rule would anchor the copyright compliance analysis in the law of the Member State where the principal investigator is based, clarifying the applicable legal framework for ascertaining compliance with copyright rules. Properly calibrated, this mechanism would transform the current patchwork of national use permissions and restrictions into one predictable legal baseline for cross-border research.
Adopt measures against unfair contract terms
A central source of legal uncertainty is the use of contract terms that neutralise copyright exceptions through foreign law and forum clauses, and technical access restrictions while being subject to overbroad indemnities. A sector-specific regulation seeking to ban unfair contract terms would level the playing field. It would identify and invalidate clauses that defeat the purpose of EU copyright exceptions on which knowledge institutions depend to carry out their public interest missions. It could contain:
- a blacklist of unenforceable clauses;
- a grey list of presumptively unfair clauses;
- a reasonableness test for bespoke terms; and
- transparency obligations requiring the use of plain and intelligible language and contra proferentem interpretation of ambiguities.
This mechanism directly targets a contractual leverage problem, composite contracting strategies, and indemnity clauses that knowledge institutions cannot realistically perform. It would complement, rather than displace, negotiation freedom by establishing baseline fairness standards.
Combine the mechanisms to arrive at a coherent framework
Together, these measures construct an ecosystem of lawful confidence where knowledge institutions, while acting responsibly, can benefit from copyright flexibilities to a larger extent. Rightsholder interests are preserved through diligence rather than deterrence. Copyright can serve the advancement of knowledge and culture, as envisaged in the regulatory design underlying the EU system of exclusive rights and exceptions for educational, research and cultural heritage activities.
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]]>On Tuesday, we made the following statement on Limitations and exceptions for libraries and archives/ Limitations and exceptions for educational and research institutions and for persons with other disabilities (Agenda Item 5 and 6)
Dear Delegates,
I speak on behalf of the COMMUNIA Association for the Public Domain.
Too often, discussions at SCCR are framed as a confrontation between fundamentally incompatible approaches. Ahead of this session, we undertook a detailed comparison of the African Group proposal with EU copyright law, while other colleagues carried out similar analyses in relation to other copyright systems and the updated US Objectives and Principles.
These analyses suggest that many of the key elements of the African Group proposal build on principles that numerous Member States, including the EU, already recognise domestically. They also reveal substantial common ground between the African Group proposal and the updated US Objectives and Principles.
Therefore, it is difficult to understand the continued reluctance to engage with these converging proposals and pursue constructive text-based discussions based on their commonalities. We hope this session marks a shift in this positioning.
Thank you.
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]]>The post SCCR/48: COMMUNIA statement on the protection of broadcasting organizations appeared first on COMMUNIA Association.
]]>Today, we made the following statement on the protection of broadcasting organizations (Agenda Item 4).
Dear Delegates,
I speak on behalf of the COMMUNIA Association for the Public Domain. We would like to call the attention of Delegates to the fact that, after eight drafting iterations of the Broadcast Treaty, we still have not seen amendments that adequately reflect the public interests and needs of access to knowledge and culture. This remains the case even though several delegations have consistently called for such amendments.
We have long stated that the rights-based model creates a serious danger for the Public Domain. Broadcast signals routinely contain Public Domain material. Without a clear safeguard, broadcasters could place new layers of exclusivity over material that already belongs to the public.
At the same time, the Treaty must guarantee that broadcasters are not granted broader rights over signals than creators have over the content carried by those signals. With a rights-based approach, it must be guaranteed that, at the very least, the same mandatory exceptions that already exist for copyrighted works apply to broadcast signals.
Thank you.
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