The wandering saga of the text and data mining exception in the EU copyright reform

Now that the EU Parliament committees have introduced their amendments to the Commission’s Directive on Copyright in the Digital Single Market, it’s useful to take a look back at the evolving nature of various aspects of the reform. This week we’ll review the copyright exception for text and data mining. Text and data mining (TDM) enables mechanical analysis of  huge amounts of text or data, and has the potential to unlock interesting connections between textual and other types of content. Understanding these new connections can enable new research capabilities that result in novel technological discoveries, critical scientific breakthroughs, journalistic endeavors, and new business analytics opportunities.

The Commission first asked about text and data mining in its 2013 public consultation on the review of the EU copyright rules, and Communia responded to the call for feedback. We argued that text and data mining should be considered as an extension of the right to read—that mining texts and data for facts is an activity that is not and should not be protected by copyright. We noted that TDM should not be addressed through contractual-, license-, or fee-based approaches, and urged that technical protections measures should not prevent users from engaging in text and data mining activities. We argued for legal clarity in our 2015 policy paper on the the review of the EU copyright law: “the development of clear rules for researchers who must be able to read and analyse all information that is available to them, whether through text and data mining or otherwise.”

The Commission’s Crippled Proposal

In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.

At the same time, we identified major problems with the Commission’s proposal. First, there was the limitation on the beneficiaries. The proposed exception would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State. The practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. This is not aligned with the goals of the reform to promote activity in the digital single market. Second, the Commission limited the purposes for which the TDM exception would apply. Their original proposal limited the scope of the TDM activity to “purposes of scientific research.” We noted that this constraint would decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”.

We recommended that the Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations as the sole beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.

The Slowly-Improving Committee Opinions

After the Commission’s proposal was on the table, several European Parliament committees began to draw up their draft opinions, and suggest amendments to the text itself.

First, The Culture and Education Committee (CULT) released its preliminary opinion, which proposed additional restrictions for the ability for users to engage in TDM in the European Union. Instead of working to fix the Commission’s limiting framework, CULT further constrained what would be considered research applicable to the exception, suggested that scientists should delete data they use to conduct TDM, opened the door for additional rightsholder access controls, and claimed that rights holders should be compensated for TDM uses.

Next, the Committee on the Internal Market and Consumer Protection (IMCO) released its draft opinion. It took a progressive approach in suggesting fixes to the problematic Commission proposal. The committee urged for the the removal of the restriction that only research organisations may benefit from the exception, and for lifting the limitation that the exception may only be used for the purposes of scientific research. The committee also introduced a provision that technical protections that prevent activities under the text and data mining exception will be inapplicable under the law.

Then the Committee on Industry, Research and Energy (ITRE) delivered its first opinion. It echoed the suggestions made by IMCO, supporting an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes other than only scientific research. The ITRE draft opinion provides additional support to the notion that rightsholders need not be compensated for uses under the TDM exception—“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.”

Finally, the Committee on Legal Affairs (JURI) published its draft opinion. The changes to the Commission’s proposal with regard to TDM are quite positive. Its amendments would expand the TDM exception to apply to anyone for any purpose. In addition, it would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee to those publishers. Finally, the amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.

TDM Turning a Corner?

The Commission introduced a deeply flawed proposal for a Directive on Copyright in the Digital Single Market, and some individual MEPs have proposed counterproductive amendments that would further restrict EU citizens from taking advantage of the enormous potential of TDM. But it’s promising to see the Parliament committees moving toward positive changes for text and data mining that will promote not only scientific discovery, but also business innovation, journalism, and a variety of interesting and novel activities made possible through a broad TDM exception.

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