Legal Affairs Should Ignore CULT’s Retrograde Changes to TDM Exception

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JURI should ensure progressive TDM rules
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Summer is nearly over, and the European Parliament Committee on Culture and Education (CULT) has published their final opinion on the draft Directive on Copyright in the Digital Single Market. The opinion comes following the committee vote on 11 July.

We were hopeful that CULT could deliver some helpful (and much needed) changes to the Commission’s proposal, including broadening the education exception, permitting cultural heritage institutions to share their collections online, deleting the dangerous press publishers right, and opposing upload filters for online platforms.

Regarding text and data mining (TDM), we wished for CULT to push for expanding the exception so TDM could be conducted by anyone, for any purpose. Instead, CULT has doubled down on their backward approach to Article 3.

Slight change to ‘scientific research’ definition is pointless

In Amendment 3 to Recital 5, CULT notes that the term “scientific research” should be understood as referring “both to the natural sciences and the human sciences”. This change might be interpreted as beneficial to humanities and social science researchers who wish to be able to leverage the TDM exception in their work, but it doesn’t go nearly far enough. We’ve argued consistently that any constraint on the purpose for which TDM may be conducted would decrease the potential impact of interesting and useful TDM activities, such as for

journalism-related investigations, market research, innovation-related developments or other types of activities not strictly considered “scientific research”. The exception needs to allow TDM for any purpose, not just scientific research (or subsets of scientific discipline).

Beneficiaries must be expanded

The Commission’s proposal includes a TDM exception that would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State.  CULT offers no meaningful change to the Commission’s plan. As we’ve stated before, the practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. In addition, it restricts the ability to undertake

TDM for groups such as journalists, citizen scientists, social enterprises, civil society organisations and cultural heritage organisations, all of whom stand to benefit from automated data analysis.

Rightsholder compensation inappropriate for TDM uses

Amendment 7 to Recital 13 deletes the existing recital proposed by the Commission:

There is no need to provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal.

And Amendment 47 to Article 3 paragraph 4a (new) states, “Member States may provide for fair compensation to rightholders for the use of their works or other subject-matter pursuant to paragraph 1.” There is no need to provide for compensation to the underlying rights holders (typically, science publishers). Since the research has already been paid for, changes proposed by CULT unnecessarily opens the door for increasing costs of scientific research. There is no harm to the rights holders, especially since TDM is generally considered to be a non-expressive use of content.

Deleting research content doesn’t serve science

In Amendment 5 to Recital 10, CULT says:

To prevent unjustified dissemination of the content necessary for text and data mining, research organisations should be allowed to store and preserve in a secure manner the reproductions of works or other subject matter obtained pursuant to the new exception, for the time needed to perform the research. Reproductions of works or other subject-matter made for the purpose of text and data mining should be deleted once all the activities necessary for the research have been carried out.

It’s already well-understood that research organisations are required to secure the contents of their repositories against copyright infringement. But mandating that these research organisations delete TDM subject matter is counterproductive to accepted scientific practice. In order to promote verifiability and reproducibility of scientific experiments, downstream researchers should be able to securely access and use the same types of content. In fact, the JURI draft opinion includes a provision to direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM.

There is huge potential for text and data mining—in terms of scientific advancement and discovery, civic engagement, and economic activity and innovation within the Digital Single Market. CULT’s stubborn inactivity ignores this crucial opportunity.

Now it’s time for JURI to push a progressive TDM exception over the finish line. As we’ve written, some of JURI’s recommended changes to the Commission’s proposal with regard to TDM are quite positive. Particular amendments would expand the TDM exception to apply to anyone for any purpose. In addition, they would mandate that publishers provide a mechanism for users who otherwise do not have legal access to the corpus of works to be able to engage in TDM on the publisher’s content, possibly after paying a fee for the normalisation of content for TDM use. Finally, an amendment would direct Member States to setup a secure facility to ensure accessibility and verifiability of research made possible through TDM. 

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