Statement by LIBER’s Copyright & Legal Matters Working Group

Schools and universities are highly reliant on the multiple digital platforms and infrastructures that provide services to students, teachers, and researchers. It is therefore surprising that the Digital Services Act (DSA) does not consider the impact that this new regulation will have on education and Open Science.

In fact, despite high levels of public investment in education and research, infrastructures (such as institutional and national repositories as well as platforms like Zenodo, the European Open Science Cloud, arXiv.org etc.), they do not feature at all in the European Commission’s impact assessment, nor are they mentioned in the draft Digital Services Act.

In terms of the draft Digital Services Act, it remains unclear whether education and research infrastructures fall within the core definitions of hosting and online platforms, as scientific infrastructures are not “provided by, and at the request of, a recipient of the service”1 (emphasis added). Educational establishments initiate and create repositories and other infrastructures that host academic content to promote education and research, and are therefore not directly “at the request of” students or researchers. This interpretation, however, is at odds with the view expressed by the Digital Services and Platforms Unit (CNECT.F.2) when representatives of the university sector met with them last year.

As such, this all creates an overwhelming lack of clarity for the many thousands of academic and research institutions across Europe and beyond, given the extraterritorial nature of the legislation.

Our core concerns as a LIBER Working Group are:

  • The confusion the lack of clarity in the draft Act creates as to whether education and scientific platforms are in or out of the scope. We believe that the ambiguities in the core definitions of “hosting service” and “online platform” create significant legal, managerial, and therefore financial ramifications for the sector.
  • If deemed to be in scope, this creates legal conflict with the Copyright in the Digital Single Market Directive from which our institutions are explicitly excluded from in terms of the obligations that relate to other online platforms. (Recital 62).
  • The chilling effect the legislation creates for educational platforms. As we have seen with the GDPR, we are concerned that international providers of education and research infrastructures may choose to block access within the EU in order to avoid the legal obligations created by the DSA.
  • The undermining of academic freedoms. Whereas “illegal content”, such as fake news etc. in one environment is undesirable, contextualised within a learning framework it can be a legitimate subject for research. The Act entirely ignores the dual quality of information dependent on its context.

Moreover, the European Parliament has introduced the concept of a waiver in Article 16 for “not for profit intermediary services” in regards to the obligations of Chapter III. While we deem this a positive step:

  • it does not deal with the fundamental issue of whether education and research sectors are in scope of the legislation or not, due to the ambiguity of the core definitions[1];
  • it is unclear whether this bureaucratic process will survive the trialogue;
  • whether given 1 above, thousands of educational and scientific repositories across Europe and beyond should follow the processes outlined by the Act or not.

As a Working Group, we believe education and science deserve better. To this end, reflecting the Copyright in the Digital Single Market Directive, we propose the following wording is added to the Digital Services Act:

Not for profit educational, scientific and research repositories, and infrastructures run by educational establishments, libraries, archives, and other cultural heritage institutions should be excluded from the definition of online platform.

LIBER in collaboration with Knowledge Rights 21, SPARC Europe, other library associations, the European University Association and Science Europe are continuing to represent the interests of the sector on this important issue in Brussels.