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Draft opinion from research committee promotes a TDM exception available to all

We’ve already reviewed the draft opinions from the European Parliament’s Culture and Education Committee (CULT) and the Committee on the Internal Market and Consumer Protection (IMCO) on the Commission’s proposal for a Directive on copyright in the Digital Single Market. Regarding the introduction of an exception for text and data mining (TDM), the IMCO amendments would strengthen the Commission’s original plan by creating a broad exception for text and data mining that would apply to anyone for any purpose. On the other hand, the changes offered by CULT would further restrict the ability to conduct TDM in the European Union.

TDM for all

This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.

ITRE’s amended article text:

Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by public entities, private entities and individuals in order to carry out text and data mining of works or other subject-matter to which they have lawful access.

We’ve advocated for this type of permissive approach; the TDM exception should benefit not only traditional research labs, but also other institutions, individuals, and companies that wish to engage in mining for any purpose. Broadening the exception can improve scientific discovery, enable novel journalistic practices, and promote innovation opportunities across Europe.

User protections against rightsholder meddling

ITRE’s draft opinion is similar to—but not as strong as—IMCO’s with regard to safeguarding against potential interference from rightsholders. One feature of the Commission’s original proposal is that rightholders should be allowed to apply measures to limit text and data mining if there is a risk to the “integrity” or “security” of the materials. ITRE’s amended text removes “integrity”—thus allowing rightsholders to apply controls only if TDM activities pose a security risk to their systems.

The ITRE draft opinion goes a bit further, stating that any measures adopted by rightsholders to ensure the security of their systems “should not prevent or exclude the ability to develop text and data mining tools different from those offered by the right holder as long as the security of the networks and databases is protected.” This is a welcome addition. And ITRE members that provide feedback on the draft could look to the important suggestion offered by Rapporteur Stihler that forbids the addition of technical protections that would prevent activities under the text and data mining exception.

No need for compensation

Finally, the ITRE draft opinion provides additional support to the notion that rightsholders need not be compensated for uses under the TDM exception. While the Commission’s proposal states that there is no need for compensation because the nature and scope of the exception would lead to only minimal harm, the ITRE amendment states that compensation is not needed at all because “there would be no unreasonable prejudice to the interests of rightholders … [and] use under the text and data mining exception would also not conflict with the normal exploitation of the works in a way that calls for separate compensation.”

All in all, the ITRE draft opinion suggests positive amendments that can help Europe fully realize the potential for text and data mining. We hope that the imminent JURI draft opinion will be equally (or more) supportive in furthering a progressive copyright reform for TDM by ensuring that the exception is available to everyone for any purpose.

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