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EU policy makers often fail to consider the specific nature of higher education, research and innovation in legislation aimed to shape Europe’s digital transformation. EUA expert Bregt Saenen explains this missed opportunity and the urgency to give the academic sector a proper place in the digital space.

In recent years, EU policy makers have proposed, negotiated and adopted several important pieces of legislation to shape Europe’s digital transformation. These are part of “a political agenda to accelerate the development and uptake of digital technologies [that] has been emerging in Europe in recent years,” as stated by my colleague Sergiu-Matei Lucaci.

The primary focus of this agenda on the legislative side has been to counter the dominance of large, for-profit companies in the digital space. For example, news reports cite the Digital Services Act (DSA) and Digital Markets Act (DMA) as the European Commission’s attempt to regulate big technology companies such as Google, Apple, Amazon and Facebook.

However, the impact of this legislation goes beyond for-profit technology companies. It also sets the conditions for the future of higher education, research and innovation. The legislation impacts the ability of universities to make effective use of and contribute to the further development of digital tools and technologies. The transition to Open Science is driven in large part by repositories and other digital instruments, while learning and teaching has flourished during the Covid-19 crisis due to a variety of online conference and collaboration tools.

Therefore, it is paramount that EU policy makers treat the academic sector as a priority when shaping Europe’s digital transformation. Indeed, given that the DSA, DMA and other pieces of legislation are largely focussed on regulating for-profit players in the digital space, the proposed regulation very often touches on the work of universities and other not-for-profit actors. However, the digital legislation proposed and adopted by EU institutions does not consider the specific nature of higher education, research and innovation. While some established legal definitions and categories can be precise and effective when applied to for-profit sectors, they do not always make sense when applied to not-for-profit academic actors. This opens the door to uncertainty and unintended consequences.

For example, the DSA proposes to categorise digital services depending on their size and, in turn, impose more far-reaching due diligence and transparency reporting obligations on the larger platforms. This is clearly a good idea, but the categories themselves are problematic when applied to universities. A university running an online repository to make educational and research outputs openly available cannot be categorised in the same way as for-profit services. Both the nature of the content and the purpose of the sharing are distinctly different as the university’s repository is publicly funded and made available as a public good to the academic community and society. Imposing the obligations of the DSA risks getting in the way of an already well-established system, hindering the further transition to Open Science and ultimately introducing new barriers to scientific advancement.

As a result, representative organisations of the European academic, library, education, research and digital rights communities have been forced to advocate for broad exemptions. As legislation is being conceived with primarily (if not exclusively) for-profit sectors in mind, arguing for an exemption is the only reasonable option for other sectors to avoid collateral damage. This was the case when EUA and its partners worked to successfully include exemptions in the EU Copyright Directive. The same is currently happening in relation to the DSA.

This is a missed opportunity. While exemptions prevent universities from incurring collateral damage, they do little to provide a clear legal footing and consistent rules for EU member states to continue and expand their use of digital tools and technologies. As higher education, research and innovation move ever deeper into the digital space, this is becoming a pressing issue to be addressed by policymakers together with our sector.

EUA is working with the EU institutions and partner organisations to ensure the right conditions for Europe’s digital decade to become a knowledge-based transformation. The sector is already launching proposals on what this might look like, for example Karen Maex’s proposal received notable attention earlier this year. Is it time for a European Knowledge Act to make sure higher education, research and innovation take their proper place in the digital space?


Bregt Saenen
European University Association

Bregt Saenen is Policy Analyst at the European University Association. He works on academic career assessment in the transition to Open Science and the digital transformation of research and innovation. Bregt holds a doctoral degree in EU Studies from Ghent University in Belgium.

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