The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law

Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of the European Union. However, research, as an activity that is indispensable to achieve the aims and objectives of the Union to enable technological, scientific, and cultural progress and work towards a sustainable future, has insufficiently featured in this constitutional discourse. The digital environment and its tremendous potential to enable new forms of research has accentuated the urgency of addressing the issue from a constitutional perspective under the heading of “digital constitutionalism”. It is therefore argued that a ‘right to research’ derived from international and European human and fundamental rights law can play an important role in the future to remove copyright barriers to research activities and to inform reforms towards more sustainable and research friendly copyright laws in the EU. Although a ‘right to research’ is not expressly included in any of the relevant human rights and fundamental rights instruments, it is so implicitly: in fact, the seeds of a right to research are already contained in a variety of fundamental rights at European and international level and in the aims and objectives of the Union’s constitutional order. Based on the relevant fundamental rights, this paper tries to identify the substance of the right to research, arguing that there is a constitutional imperative to create a paradigmatic shift in European union copyright law towards a copyright system that can help to achieve the programmatic goals of the Union such as sustainable development, innovation and justice that are the core of a regulated market economy. In order to help positioning research as a core priority of the European Union, this paper further proposes the introduction of a specific right to research in the Charter of fundamental Rights of the EU as a precondition for the protection of the moral and material interests of creators, thus mirroring the international human rights justifications of copyright protection.