Last week the Culture and Education Committee of the European Parliament (CULT) released its draft opinion on the European Commission’s proposal for a Directive on Copyright in the Digital Single Market. Rapporteur Joulaud rightly shows that the Commission’s proposal ignores many of the crucial concerns voiced by internet users, and offers some amendments to rectify the situation. At the same time, the opinion suggests an ill-advised change to the proposed ‘press publishers right’ by introducing a non-commercial clause. In addition, CULT pushes for an even stronger reliance on licensing, instead of supporting a broad copyright exception for education.
But perhaps the area of the draft CULT opinion that is most detrimental to users and the Digital Single Market is in the suggested amendments to the text and data mining (TDM) exception. The Commission’s original proposal was nothing to write home about. Instead of championing a progressive policy to boost scientific discovery and innovation in the EU by introducing a TDM exception that would apply to anyone for any purpose, the Commission decided to limit the scope of the exception to only not-for profit research organisations, and only for purposes of scientific research.
The draft CULT opinion goes even further in restricting the ability to engage in TDM in the European Union.
First, the draft opinion wishes to clarify the definition of scientific research:
the term ‘scientific research’ used in this Directive is to be understood as referring both to the natural sciences and the human sciences.
While this might initially be seen as an improvement because it opens the scope of what is considered to be covered under the exception, it’s still too constraining. Text and data mining should be available to anyone for any purpose.
Second, the draft opinion suggests that scientists should delete data they use to conduct TDM:
To prevent unjustified dissemination of the content necessary for text and data mining, research organisations should destroy the content reproduced for the purpose of text and data mining once the all the acts necessary for the research have been performed.
There are many questions related to this blunt requirement. For example, if scientific experimentation requires access to the underlying data to ensure that results can be replicated ad verified, what is the point of destroying the materials from which such results can be checked? Also, why would such a mechanism be necessary when existing law already provides remedies related to infringement that will incentives researchers to handle texts with care?
Third, the draft opinion clarifies a possible mechanism for rightsholders to further restrict TDM:
rightholders should be allowed to apply measures, such as identification confirmation, where there is risk that the security and integrity of the system or databases where the works or other subject-matter are hosted might be jeopardised.
Again, we’ve consistently argued that TDM activities should be available to anyone for any purpose. Adding more restrictions will set up yet another hurdle to scientific discovery and innovation.
Finally, the draft opinion holds that rightsholders should be remunerated for TDM activities:
Rightholders should be compensated for uses under the text and data mining exception introduced by this Directive given the mandatory nature of the exception and the consequent investments that will be required by rightholders to make technically possible and facilitate the wide use of text and data mining techniques under the scope of the exception, which cause sufficient harm to justify such compensation.
There is zero evidence presented as to why remuneration should be granted to the rights holders. TDM assumes that the user already has legal access to the underlying works, and the Commission’s Impact Assessment goes so far as to say, “the lawful access condition foreseen for the use of the exception would ensure that the preferred option does not affect the right holders’ subscription market.” This provision should be seen as nothing more than another way that rights holders are trying to extract fees by taxing a novel research technique that does not implicate copyright by attempting to introduce a made-up right to remuneration.
The amendments to the text and data mining exception are, on the whole, detrimental to scientific research and innovation in the EU. We continue to believe that a broad TDM exception that would apply to anyone for any purpose is the right approach to enable and improve scientific discovery and business opportunities in Europe.