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Proposed Council compromise on TDM: still not good enough

We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU.

Another ask to Parliament

Last week, Communia joined 27 organisations in a letter to the Legal Affairs committee asking them to improve the exception for text and data mining. Specifically, we called for the committee to 1) broaden the scope of the article so that it permits TDM by anyone, 2) support the provision that ensures that contractual terms restricting the use of the exception will be deemed unenforceable, 3) clarify that technical protection measures cannot be used to restrict the ability for beneficiaries to exercise their rights under the exception, and 4) add a provision to allow datasets created for the purpose of TDM to be stored on secured servers for future verification.

A progressive TDM exception can support science and DSM at the same time

A recent article in Nature explores the potentially negative consequences of the EU copyright reform on open science, including the implications of extending the press publishers right to academic articles (terrible idea, by the way), and the challenges posed by the upload filters to research repositories.

The article also explains that the copyright exception to permit TDM across Europe could be seen as a silver lining to the other more protectionist measures of the reform—if it would actually be expanded to include commercial beneficiaries.

The Commission’s original proposal was supposed to be a copyright reform that promotes scientific research, but also expands the EU digital single market. But so far, the TDM provisions don’t adequately address the incredible opportunities to kickstart European-grown technologies, processes, and discoveries. Without a more progressive TDM exception that incubates investment and innovation in these sectors, startups, firms, and partnerships that do not fit neatly under the narrow exception will leave these EU lands for greener pastures with more permissive and supportive legal environments for TDM.

A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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