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twitter.com/openminted_eu

Giulia Dore, University of Glasgow

UKSG webinar

The Law on TDM in Europe: an

introduction

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A simple question: is TDM legal?Text and data mining (TDM) as a mighty but fearful tool It unlocks information, ascertaining additional value from prior or novel data, promoting knowledge expansion and scientific progressYet, it encounters technical, economic and legal barriers that hinder its developmentA range of legal obstacles from IPRs to contractsTDM applies to resources that are likely to be protected by the law, including but not limited to copyright, sui generis database right and contractual terms

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The answer is: it depends

To put it simple, you may be lawfully mining whenYou rely on licences that grant (TDM) permission, e.g. Creative Commons (CC) licences orYou benefit from a (TDM) copyright exception, e.g. UK CDPA 1988, Section 29AOtherwise, you may be infringing someone's rightsIn particular, copyright and sui generis database (SGDB) right, and/or be breaching the terms of the contractif (further) contractual limitations to TDM are applicable

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Lens on Copyright …How TDM could infringe copyright in three steps:Virtually any text and data mining activity entails the copying of the resource to be mined, butEvery act of reproduction (and so the right of distribution) is shielded by the very expansive exclusive right of the copyright owner to reproduce copyright works, which lies at the very core or copyright law: e.g. UK CDPA 1988, s. 16, listing the acts restricted by copyright in a work.Hence, unless the latter authorises such act or a copyright exception applies, TDM would be illicit

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… and its limited exceptions

In Europe, highly fragmentedLimited range of copyright exceptions: only 1 mandated by the EU, others (20) optional for Member States (Art. 5 Copyright Directive 2001/29/EC)For TDM, existing general exceptions may apply, but with important limitations:Illustration for teaching or scientific research, Quotationse.g. UK CDPA 1988, S. 29 (Fair dealing for research and private study) and 30 (Criticism, review, quotation and news reporting)In other words, the same extensiveness enjoyed by the right of reproduction does not apply to its exceptions

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Lens on SGDB rightHow TDM could infringe SGDB:Similarly to copyright, the right to extract and re-use DB is particularly broad and pervasive (Database Directive 96/9/EC).In particular, extraction and re- use of all or substantial parts of a protected database (made with a substantial investment in obtaining, verifying or presenting the contents) as well as reiterated extraction/re-use of its insubstantial parts is exclusively reserved to the DB owner. E.g. UK CRDR 1997 (SI 1997/3032)Therefore, in absence of the rightholder permission or an applicable exception, any related TDM activity would result in an infringement

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Lens on Contracts

When no exception applies and you should seek permission from the right holder to perform otherwise restricted acts on protected resourcesA license agreement is what you need to be authorised to carry out (as well) TDM activities, although you may need to negotiate on a one-to-one basis, and this costs!Besides, having too many licenses may not help eitherOften their language not always clear or standardise and might lead to inconsistency and incompatibility of termsTo such extent, Open Access (OA) public licenses (PL) come to an aid. E.g. CCPL

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Is a TDM exception the optimum?

In Europe, only two EU Member States - the UK and (more recently) France - have enacted a specific statutory exception that allows making copies of protected resources for TDM purposesFocus on the UK CDPA 1988, S. 29A (Copies for text and data analysis for non-commercial research)No copyright infringement occurs provided:(a) a lawful access to the resource, (b) copy is made to carry out computational analysis (c) for the sole purpose of research for a non-commercial purpose, (d) along with sufficient acknowledgement unless unfeasible

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Even with so many boundaries?

While appreciating that contractual terms preventing or restricting the benefit of such exception are unenforceable, the non-commercial purpose may actually diminish the strength of a TDM exception

Besides, under UK law copyright infringement openly occurs if that copy is transferred or used (and otherwise dealt) for different purposes, unless the copyright holder authorises it

Does perhaps the French exception overcome these precincts? Not really: lawful access and non-commercial purposes, only resources included in or associated with a scientific publication for the needs of research

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The EU plans for TDM

A new mandatory exception is projected by the Commission in the Proposal for a Directive on Copyright in the Digital Single Market, COM (2016) 593, Article 3for reproductions and extractions to carry out text and data mining by research organisations that have lawful access to the resources for the purposes of scientific researchConflicting contractual provisions deemed not enforceable, but some protecting measures for networks and databases may still (with limitations) apply.Will this really “give researchers the freedom to pursue their work without fear of legal repercussions”, as EU Commissioner Moedas suggests?

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The role of OpenMinTeD

In particular, the WG3 Working group on IPRs and licensing focuses on the legal barriers to effective TDM activities and aims at identifying the legal tools to uphold the development of TDM serviceson two levels:Licensing, by recommending few and most suitable licenses and promoting licence compatibility toolsLegislation, by boosting proper (national and EU) legislative intervention that targets an enhanced balance among exclusive rights and exceptions

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Thank you

Any questions?Interested to know more about the OpenMinTeD

project?

giulia.dore@glasgow.ac.uk

Presentation licensed under Creative Commons Attribution (CC-BY) 4.0

See full terms at https://creativecommons.org/licenses/by/4.0/legalcode