At the end of 2023, we organised a final salon on the implementation of the Directive on Copyright and Related Rights in the Digital Single Market. Bulgaria had finally implemented the Directive, the second to last Member State to do so, and the moment seemed right to take stock of the implementation process one last time. While Poland still needs to conclude its national transposition, the comparative analysis of the laws of 26 Member States is sufficient to identify major flaws and new directions coming out of the implementation of the DSM Directive.
In this series of blog posts, we present the positive and negative trends in national copyright policy following the DSM implementation. We are focusing our analysis on those provisions that are most relevant from our perspective. In this initial article, we present the results of our analysis of the legal landscape for research.
Background
In April 2019, the EU adopted the DSM Directive, igniting the most important copyright reform across the region in over a decade. In the following months, we worked with civil society stakeholders to issue a set of implementation guidelines to expand and strengthen users rights at a national level. Those guidelines directed our advocacy efforts during the national legislative processes and also served as a guide to our assessment of the implementing laws.
With the implementation process finalised in all but one Member State, we wanted to understand the impact of our proposals, identify the areas where Member States had differed and converged, and evaluate whether those variations affect the position of users and the public domain. This blog post presents our findings concerning the implementation of research rights.
Articles 3 and 4 of the DSM Directive introduced two mandatory exceptions and limitations to copyright for text and data mining (TDM): one for scientific research purposes and other for general purposes. While Member States had some considerable leeway in how to implement Article 3, they did not have much room to manoeuver on the transposition of Article 4.
For the most part, Article 3 of the DSM Directive is a floor, not a ceiling, for the use of copyrighted materials in scientific research activities. National governments had the option to follow closely the DSM prototype or go beyond this provision. In other words, they could broaden the legal framework for scientific research in their countries, and the good news is that most Member States have done exactly that.
Going beyond text and data mining
The majority of national copyright laws enable more than just TDM activities; they also allow other scientific research activities, as permitted under Article 5(3)(a) of the InfoSoc Directive. Article 25 of the DSM Directive makes it clear that Member States can adopt or maintain in force scientific research exceptions that are broader in scope than the TDM exception in Article 3, as long as they were compatible with existing EU law (namely Article 5(3)(a) of the InfoSoc Directive).
Our post-DSM implementation analysis of national research exceptions confirms that a total of 19 Member States have made use of that policy space that is available to them in the field of scientific research. They have some exceptions for non-commercial scientific research purposes other than text and data mining, and in eight of those Member States the exceptions are open and flexible, covering all acts by any users, as permitted by the InfoSoc prototype:
- Open scientific research exceptions: HR, CZ, EE, LV, LT, LU, RO, SK
- Specific scientific research exceptions (other than TDM): BE, BG, CY, FR, DE, HU, IE, IT, MT, SL, ES
Granting sharing rights to researchers
Another area where most national frameworks are more favourable to research than the minimum standard set by the DSM relates to the right to share copyrighted materials. Whereas Article 3 of the DSM Directive only covers acts of reproduction, five Member States decided to extend their national TDM exception for scientific research to acts of communication to the public. In addition, 17 Member States also provide sharing rights under their general scientific research exceptions:
- Sharing rights under TDM exceptions for scientific research: AT, DE, HU, IT, SL
- Sharing rights under other scientific research exceptions: BE, HR, CY, CZ, EE, FR, DE, HU, IE, IT, LV, LT, LU, RO, SK, SL, ES
As our interviews with European researchers show, the ability to share research resources is a pressing concern of the research community. This right is essential to permit the verification and validation of the research results, to advance joint and cross-border collaboration, to enable remote access to research resources, and to facilitate compliance with open access requirements. Seeing some convergence in 18 Member States with regards to sharing rights for scientific research is, therefore, highly welcome.
Facilitating access to TPM-protected resources
A high point in national copyright lawmaking in the field of scientific research took place in Slovenia, not least because the national policymakers decided to improve the technical protection measures (TPM) regime to facilitate access to research materials for text and data mining for scientific research purposes.
The fact that TPMs have near absolute protection in EU copyright law and that most Member States have no clear mechanisms in place to ensure that beneficiaries of copyright exceptions can access and use TPM-protected content (in a report commissioned by the Commission, researchers were only able to identify such mechanisms in 8 EU countries), can significantly impair scientific research in the EU.
Therefore, the Slovenian lawmaker decided to mandate right holders to remove TPMs and provide access to legally accessible works in 72 hours, in cases where the TPMs frustrate access to materials for purposes of text and data mining for scientific research.
Demanding machine-readable opt-outs
Finally, on the implementation of Article 4 of the DSM Directive, it’s worth noting that, although Member States could not go beyond the scope of protection of Article 4, they had the chance to make a difference when implementing paragraph 3 of this article.
Article 4(3) provides that the general-purpose TDM exception does not apply when rights holders opt-out of these TDM activities in an appropriate manner. The EU lawmaker goes as far as exemplifying what “an appropriate manner” could mean in the case of content made publicly available online (the text reads: “such as machine-readable means”). However, it falls short of mandating rights holders to adopt machine-readable means to transmit the decision to opt-out from TDM.
As we know, certain TDM activities are extremely data-intensive. Training an AI model, for instance, requires an incredible amount of data, with web crawlers being used to harvest virtually everything that is on the open Internet. We cannot really foresee how the creator’s decision to opt out from AI training can be respected if they do not use machine-readable means to reserve their rights.
At this point of the discussions, the question is no longer whether creators should use machine-readable means or not, but which machine-readable protocol should they use. Therefore, we were pleased to verify that 11 Member States had gone beyond the DSM Directive and actually demanded the use of machine-readable means to reserve TDM rights on online materials:
- Opt-out through machine-readable means is mandatory: BE, BG, HR, CZ, DE, HU, IE, LV, LT, PT, SL
- Opt-out through machine-readable means is optional: AT, CY, EE, FR, GR, LU, MT, NL, RO, ES
- Machine-readable means are not mentioned: DK, FI, IT, SK, SE
Conclusion
In sum, most Member States have gone a few steps further than the EU lawmaker to enhance their copyright framework for research and advance these activities in their countries. The deviations from the minimum harmonisation standard set by Article 3 of the DSM Directive, identified in this blog post, seem to respond to general concerns of the research community. They should therefore find their way into EU law, translating into greater harmonisation in the field of users rights.
In the next blog post, we’ll focus on the implementation of education rights.
