Towards a Digital Knowledge Act Mapping Policy Options for Legal Risk Mitigation

European copyright law, traditionally justified as a framework to incentivise creativity and innovation, is increasingly perceived as a source of constraint within knowledge institutions such as universities, libraries, archives, and research institutes. While its underlying principle of balancing the rights of creators with the public interest is aligned with the missions of such institutions, in practice the regulatory framework in which knowledge institutions operate introduces significant complexity and legal uncertainty. Optional, ambiguous and problematic legal provisions coupled with risk aversion, uneven bargaining positions, aggressive contractual strategies, and the imposition of technological barriers often leave institutions unable to act with confidence. The result is a forced choice between risking potential copyright infringement, with possible legal and reputational consequences, and foregoing valuable educational, scientific and cultural heritage projects. In such an ecosystem, targeted mitigation measures become indispensable to restore predictability and enable knowledge institutions to fulfil their public missions.

Drawing on desk research, stakeholder interviews, and policy analysis, this report identifies and analyses the principal sources of copyright-related uncertainty in the EU copyright system and their implications for knowledge institutions. It considers both the legal framework and ways in which copyright may be strategically leveraged against institutions. Subsequently, the report identifies and evaluates legal mechanisms that may reduce copyright-related uncertainty and create a more predictable environment for knowledge institutions. These mechanisms are: (i) best-practice guidelines; (ii) an advisory and dispute settlement body; (iii) a liability privilege for diligent staff acting in good faith; (v) a country-of-origin rules for cross-border research; and (vi) measures against unfair contract terms. Each mechanism addresses a distinct source of legal uncertainty, yet together they may allow knowledge institutions to move away from a culture of defensive overcompliance towards a position of confident, lawful use of copyright flexibilities.

The report ultimately advances a reform agenda that builds on the existing copyright acquis, emphasising the importance of certainty, fairness, and equitable access to knowledge. Reforms should reaffirm copyright’s role as a facilitator of research and innovation and as a protector of the public interest. Without a coherent, enabling regulatory framework that explicitly recognises and mitigates legal risks, the work of the very institutions designed to drive educational and scientific advancement may be impeded. This, in turn, undermines the fundamental purpose of EU copyright law itself.

As the following analysis will show, the plethora of conditions and limiting factors that accompany copyright provisions seeking to support teaching, research and the work of cultural heritage institutions casts doubt upon the effectiveness of these provisions in practice. The minimal degree of legal certainty offered by the provisions for knowledge institutions in EU copyright law raises serious doubts about the potential of the current rules to reconcile the competing fundamental rights at stake. In other words: without appropriate countermeasures, as proposed at the end of this report, the current EU copyright acquis in the field of teaching, research and cultural heritage may be unconstitutional.