Etching depicting the demonstration of the electrifying machine in the Hall of Physics in the building of the Felix Meritis society in Amsterdam, inaugurated in 1789.

The Italian Implementation of the New EU Text and Data Mining Exceptions

The legislative decree implementing the CDSM Directive in Italy was adopted on November 8th, 2021, and published in the Gazzetta Ufficiale on November 27th. It came into force on December 12th, 2021, amending the Italian Copyright Law (April 22nd 1941, n.633Legge sul diritto d’autore, referred to below as “LdA”).

This blog post analyses the implementation of the copyright exceptions for Text and Data Mining, which is defined in the Italian law as any automated technique designed to analyse large amounts of text, sound, images, data or metadata in digital format to generate information, including patterns, trends, and correlations (Art. 70 ter (2) LdA). As we will see in more detail below, the Italian lawmaker decided to introduce some novelties when implementing Art. 3, while following more closely the text of the Directive when implementing Art. 4.

Text and data mining for scientific purposes

Art. 70 ter (1) LdA permits reproductions made by research organisations and cultural heritage institutions for scientific research purposes, for purposes of extraction of text and data from works or other materials available on networks or databases to which they lawfully have access to, as well as communication to the public of the results of research when expressed in new original works. It seems that the Italian lawmaker committed a lexical fallacy by adding that the purpose of the reproduction is to extract text and data from works and other materials available in networks or databases. This, as well as limiting the type of protected materials to those present on networks or databases, appear to be legislative inventions incompatible with the directive.

Notably, the new Italian exception also allows the communication to the public of the research outcome when such outcomes are expressed through new original works. In other words, the communication of protected materials resulting from computational research processes is permitted, provided that such results are included in an original publication, data collection or other original work.

The right of communication to the public was not contemplated in the original government draft; it was introduced in the last version of the article to accommodate the comments of the Joint Committees of the Senate and the Joint Committees of the Chamber, both highlighting the need to specify that the right of communication to the public concerns only the results of research, where expressed in new original works.

The beneficiaries of the TDM exception for scientific purposes are research organisations and cultural heritage institutions. Research organisations essentially reflect the definition offered by the directive. These are universities, including their libraries, research institutes or any other entity whose primary objective is to conduct scientific research activities or to conduct educational activities that include scientific research, which alternatively:

  • operate on a non-profit basis or whose bylaws provide for the reinvestment of profits in scientific research activities, including in the form of public-private partnerships;
  • or pursue a public interest purpose recognised by a European Union member state (Art. 70 ter, (4)LdA).

If commercial enterprises exercise a decisive influence, such as allowing access on a preferential basis to the results generated by scientific research activities (Art. 70 ter, (5) LdA), an organisation will not be considered a research organisation under this law. Cultural heritage institutions are defined broadly, including libraries, museums, and archives, as long as they are open to the public or accessible to the public, also those belonging to educational institutions, research organisations and public broadcasting bodies, as well as the institutes for the protection of film and sound heritage and the public broadcasting bodies (Art. 70 ter, (3)LdA).

The copies of works or other subject matter created need to be stored with an adequate level of protection and can be kept and used only for scientific research purposes, including the verification of research results (Art. 70 ter, (6)). Rightsholders are authorised to apply measures to ensure the safety and integrity of the networks and databases where the works or other subject materials are hosted (Art. 70 ter, (7) LdA). Such measures shall not go beyond what is necessary to achieve and can also be defined based on agreements between right holder’s associations, cultural heritage institutes and research organisations (Art. 70 ter (8) LdA). Such negotiations have not taken place so far.

The Italian lawmaker did not expressly contemplate any specific and fast procedure for cases where technical protection measures prevent a beneficiary from carrying out the permitted acts under both TDM exceptions. However, the law now recognises to the beneficiaries the right to extract a copy of the material protected by technological  measures in certain cases. Under Art. 70-sexies, LdA, beneficiaries of the TDM exception for scientific purposes (as well as the beneficiaries of the exception for digital and cross-border teaching activities exception) shall have the right to extract a copy of the protected material, when technological measures are applied based on agreements or on administrative procedures or judicial decisions. In order to benefit from this right, the person shall have lawful possession of copies of the protected material (or have had legal access to them), shall respect the conditions and the purposes provided for in the exception, and such extraction shall not conflict with the normal exploitation of the work or the other materials or cause an unjustified prejudice to the rights holders.

While the Italian lawmaker should be praised for introducing such a right, the Italian implementation still missed an opportunity to update the controversial and rarely applied negotiation and mediation procedures set forth in Art. 71 quinquies, (2) LdA (which transposed Art. 6(4) of the Infosoc Directive) to the actual needs of all beneficiaries of copyright exceptions. Furthermore, it should be noted that the law continues to reserve the application of the three-step test only to  the exceptions and limitations related to the use of protected materials available through on-demand services only, including under the new copyright exceptions, contrary to what is mandated by Art. 7(2) of the CDSM Directive.

Regarding contractual override protection, as stated by Art. 7(1) of the CDMS Directive, conflicting agreements with the TDM exception for scientific purposes are void.

Text and data mining for other purposes

The implementation of the exception for text and data mining for purposes beyond scientific research by any individual or organisation follows for the most part the text of Art. 4 of the CDSM Directive. Reproductions and extractions are allowed from works or other subject-matters available online or databases to which users have lawful access for TDM. The exception is subject to the possibility of rightsholders reserving their rights, but there is no clarification on how this reservation should be made. In this regard, the Italian law doesn’t mention the need​​ to express such reserves appropriately, such as through machine-readable standards when contents are made publicly available online.

No additional conditions or precisions are established on the retention and storing of copies of materials made to conduct text and data mining, nor on the measures that rights holders may take to ensure the safety and integrity of the networks and databases where the materials mined are hosted. Reproductions and extractions may be retained only for the time necessary for text and data mining as stated in  Art. 4 of the CDSM Directive.

Conclusion

In conclusion, the Italian legislator should be praised for going beyond what is required by art. 3 of the CDSM Directive. The Italian implementation allows the application of the TDM exception for scientific purposes to the reproduction for the extraction of texts and data or other subject matters (to which the beneficiaries have lawful access) and to the communication to the public of the research outcome when it is expressed through new original work. Therefore, in this respect, the Italian legislator exercised the option allowed by Art. 25 of the CDSM Directive to adopt a broader provision, compatible with the exceptions and limitations provided for in the InfoSoc and Database Directives.

For TDM for other purposes, the lawmaker reproduced the text of Art. 4 of the directive, not adding any extra elements to regulate, as written before, the exercise of the faculty to opt out by rights holders in a suitable and machine-readable by the computers. The Italian implementation also missed an opportunity to introduce provisions to allow the reproduction of material protected by technical measures that prevent beneficiaries from carrying out the permitted acts under the both TDM  exceptions. In sum, a total organic revision of the Italian copyright law would be desirable, which would allow for a better understanding and knowledge by not only the interpreter of the law, but also by rightsholders and users.

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