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Transcript of Science europe guibault27202015
Is Europe falling behind in data mining?Lucie Guibault, Brussels, 27 October 2015
THE PROBLEM?
TDM involves access to and usage of content (articles, sounds, images and data) in bulk which may infringe IP rights
Institute for Information Law - IViR 2
The law
Copyright Broad rights of reproduction & making available Question: is every technical reproduction also a
reproduction in the sense of copyright law? Sui generis Database right
Right of extraction and re-utilisation
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Sui generis Database right
Case C202-12, Decision 19 December 2013 (Innoweb v. Wegener)
Dedicated meta search engine infringes database right since it constitutes “re-utilising” of the “whole or a substantial part” of a database.
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Educational use and research exception (optional)
(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;
One relevant exception
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Case C-30/14 Ryanair Ltd v PR Aviation BV (15 January 2015)“the legal protection of databases is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.”
Added difficulty: Ryanair Decision
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The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
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United States of America Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 91
(2d Cir. 2014). Google Books vs. Authors’ Guild (16.10.2015)
Fair Use in Israel, South Korea, Singapore, Specific exception in Japan
Elsewhere in the world
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Line of demarcation almost impossible to make “(...) The Supreme Court reversed on this very point,
observing that “Congress could not have intended” such a broad presumption against commercial fair uses, as “nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . are generally conducted for profit in this country.”
“we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use”.
Commercial vs. Non-Commercial Research
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Modify the legal framework to allow acts of text and data mining for purposes of scientific research
THE SOLUTION?
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TWO-TIER IP SOLUTION
Copyrighto Exclusion from reproduction
right (normative approach to protection – TDM not part of right); or
o Exception to reproduction right (TDM not an infringement)
Database right o Repeal the Database
Directive; oro Exclusion from extraction
right (hardly arguable re Innoweb case); or
o Exception to extraction right
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Issues to consider in IP law Commercial / Non-commercial use Making available/re-utilisation of results Make provision mandatory
In the law of the Member States In respect of technological protection measures In respect of contractual agreements
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“Lawful use” is broader than “publisher’s licensed use” – Enron court documents, Twitter
Multiple licensing terms = risk of incompatibility = high transaction costs
Aftermath of Ryanair decision for science Beware of contractual lock-up of non-protected
items = huge public policy issue!
Issues to consider in licensing
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Ongoing Research
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For more information
Lucie GuibaultInstitute for Information Law
University of [email protected]
15Institute for Information Law - IViR