What the EU’s Digital Omnibus Means for Researchers

The recent announcement of the EU’s Digital Omnibus proposals, including the Data Union Strategy, has received a lot of attention. Much of this has focused on those elements seen as undermining data protection and privacy.

Echoing similar debates around efforts to reduce regulation linked to environmental issues, there is concern from commentators that the drive to make life easier for business will come at the cost of social, ecological and human rights goals.

What has been less well explored so far is the impact of the proposals for the research sector and for its libraries.

This impact matters. Enabling the work of researchers and research institutions strengthens Europe’s ability to compete globally. But it also clearly supports wider efforts to solve environmental, social, and other challenges through advancing science.

Here are 10 takeaways from the announcements from this perspective: some good, some mixed, and some concerning.

1) A commitment to boosting access to publicly funded research data

The Data Union Strategy is built on the understanding that a distinctively European approach to AI will require far easier access to data. We have long argued that too much material remains locked away, and have identified the European Research Area Act as a means to address this.

The Strategy appears to agree, underlining that: “In parallel, the forthcoming proposal for a European Research Area (ERA) Act will strengthen legal conditions to share, access and reuse publicly funded research results, publications and data for scientific purposes.”

This is a welcome affirmation, though it remains to be seen how ambitious the final measures will be.

2) Recognition of copyright clearance challenges

Linked to the above, the Data Union Strategy highlights the need to simplify access to language resources—particularly broadcast content—coming from outside the research area.

The focus remains on licensing—presumably supplementary to what already happens to allow for access—but there is at least recognition that copyright clearance requirements risk becoming a barrier. However, the Strategy stops short of reflecting on whether these barriers are proportionate when it comes to research uses.

3) Some progress on aligning definitions (but not enough)

The Knowledge Rights 21 submission to the Digital Omnibus highlighted the need to clarify and standardize definitions to facilitate application.

Positively, the definition of research data from the Open Data Directive will now apply across the new Data Act.

However, definitions of ‘scientific research’ vary between the proposed amendments to the General Data Protection Regulation (GDPR) and the new Data Act. The GDPR version better reflects the nature and needs of modern research, arguing that it is the framework governing the research that should matter most: “Scientific research” means any research which can also support innovation, such as technological development and demonstration. These actions shall contribute to existing scientific knowledge or apply existing knowledge in novel ways, be carried out with the aim of contributing to the growth of society´s general knowledge and well-being and adhere to ethical standards in the relevant research area. This does not exclude that the research may also aim to further a commercial interest.”

Meanwhile, the Data Act version continues to retain a definition that would exclude research-industry collaboration: “Where public sector bodies charge fees, they shall take measures to provide incentives for the re-use of certain categories of protected data for non-commercial purposes, such as scientific research purposes…”

4) Bad news on data access for researchers

The EU Data Act was already far from optimal for researchers seeking access to data to support their work, limiting options to cases of "exceptional need" mediated via the government.

However, the European Commission appears to have decided that even this is too much access. It is proposed that such access should only occur in an emergency, while retaining the option for companies to object even to this. This will further reduce the possibilities for researchers to access relevant data to pursue their missions.

5) The Open Data Directive to become a Regulation

The Open Data Directive (ODD) will be incorporated into a new, expanded Data Act. The ODD sets rules for public sector data, and introduces an obligation (with some flexibility) to make publicly funded research outputs (except publications) available under an open licence.

As a Directive, European member states previously had some room for manoeuvre in implementing the rules. This flexibility will—a priori—disappear as the provisions become part of a Regulation. The practical impact remains to be seen, given that most of the content is unchanged, with one notable exception below.

6) Possibility to make big players pay more

The new proposals introduce the idea that public bodies allowed to charge for access to cover costs can implement differential pricing, charging large companies and gatekeepers more.

Many will welcome this as a fair step benefiting smaller players. However, there is also potential for a licensing conflict insofar as the proposals also suggest that different terms of use could apply—this is incompatible with standard open licences such as Creative Commons, which do not allow for different licences to be used for the same material.

7) Ongoing care about fair contracts (but not for research)

Another document released as part of the announcement focuses on model contract terms for agreements between those holding, sharing, and using data. These build on existing Data Act provisions regarding unfair contract terms.

Unfortunately, there is no progress in ensuring that research institutions benefit from the same protections. This is a missed opportunity, as research institutions cannot make use of the protections afforded to businesses (under competition law) or individuals (under consumer law).

8) So much for the revised Better Regulation Toolbox?

The 2023 update of the European Commission’s Better Regulation Toolbox included welcome steps to underline that regulations affecting the research sector should account for the needs of research institutions and others.

However, it very much appears that this has not been the case here. Both the consultation and results focus almost exclusively on business needs. Aside from a nod to the challenges posed to research by parallel regimes, the new proposals do little to boost science in Europe.

9) Meanwhile, legal deposit is under attack

One of the most concerning issues appears in the staff working document accompanying the proposals. It cites a survey of stakeholders, which included questions about the use of legal deposit content for AI training and more. In what could be interpreted as a coordinated effort, the working document notes a significant number of respondents accused national libraries of breaking the law by allowing legal deposit content to be used for the training of AI large language models.

This represents a worrying attack on a core pillar of research and cultural policies, and appears very much based on what those complaining would like the law to be, rather than what it actually is. Libraries will need to pay close attention to such efforts in the future and be ready to call them out as efforts to chill key public interest activities.

10) It’s not over

First of all, these are currently just proposals. A discussion process in the European Parliament and Council of Ministers will now follow. It is hard to imagine they will not be amended, although, as highlighted in the introduction, much of the focus is likely to be on privacy-related questions.

Moreover, beyond the omnibus, the Commission has opened in parallel another call for evidence on the EU’s digital legislation more broadly. This provides an opportunity to reiterate that enabling and accelerating research must be a first-order priority when the EU passes laws.

Conclusion

Overall, the Digital Omnibus represents an approach to policymaking we hoped was in the past, especially following Commission President von der Leyen's commitment to boost research in Europe.

The contrast is telling: there is a drive to make research results more accessible to business, yet a simultaneous move to restrict access to business data for research. Equally telling is the effort that has gone into model B2B contracts for data, while the challenges faced by research institutions continue to be neglected.

Ultimately, the business-only approach taken is self-defeating. It misses opportunities to strengthen the research ecosystem that drives new products, services, and markets. The upcoming negotiations between MEPs and Member States, and the Commission, offer a chance to do better, as do the related consultations. This is a chance that must be seized.