New Estonian council compromise proposal: Another missed opportunity for TDM in Europe

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The right to read must be the right to mine!
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The Council of the European Union, currently led by the Estonian Presidency, has published an updated compromise proposal regarding Articles 2 to 9 of the Commission’s draft directive on copyright. The Estonian proposal will be discussed among the Member States next week at the meeting of the Copyright working party.

The minor tweaks to the exception for text and data mining offered in this recent draft—as well as the earlier changes suggested in the Maltese compromise proposal from 8 May —are inadequate to supporting research and innovation in the European digital single market.

Where the Commission’s original plan only permits “research organisations” to take advantage of the exception, the new Council’s compromise proposal would extend the beneficiaries to include “cultural heritage institutions.” At first glance this addition would seem welcome because it expands (albeit narrowly) to an additional beneficiary group. But this meager edit ignores the larger concern that citizens and  private sector organisations still will be excluded from the benefits of the exception. As we’ve argued, this is clearly not aligned with the goals of the reform to promote activity in the digital single market.

In addition, the Council compromise proposals do not change the problematic limitation that TDM may only be carried out strictly for “purposes of scientific research.” We’ve criticized the Commission’s short-sighted approach in only permitting TDM to apply to scientific research. Such a restraint will surely decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered “scientific research”.

We’ve been clear in our recommendation: a TDM exception should be able to be leveraged by anyone, for any purpose.

We’ve said that the draft Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations (and by extension—the Council’s proposed inclusion of cultural heritage institutions) as the few beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception.

This line of reasoning has been echoed in the opinions from European Parliament’s IMCO and ITRE committees, and the draft report of the JURI committee, all of which support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes other than only scientific research.

And last week, COMMUNIA and 20 other organisations representing universities, technology startup companies, Internet services providers, libraries, scientific and research institutions, and non-profits, called on European lawmakers to stand up for the future of European research and innovation by expanding the exception for text and data mining. From the letter:

At a time when European leaders want to lead the “information revolution” and ensure that the Digital Single Market is a success, we ask MEPs to defend rather than harm European research and innovation.

However, the introduction of a TDM exception by the European Commission, and now supported by the new rapporteur, limited in scope, will lead to the exact opposite.

Public and private research in Europe, along with emerging jobs in big data will be slowed at precisely the moment when other countries, including China, Singapore, Australia and the United States, are eliminating barriers for entities that use TDM and take full advantage of the opportunities provided by the data economy.

Allowing a broad use of TDM by revising the exception does not create any economic harm: on the contrary, it will help grow the use of TDM, and grow the market for scientific publications, enabling the whole research community, both rights holders and the millions of TDM users, to generate opportunities from the power of data.

It’s a missed opportunity  that the Council’s compromise proposal doesn’t embrace a progressive TDM exception. Doing so could go a long way in helping Europe support new modes of research for non-traditional players, and promote technological innovation and financial investment in EU firms and projects.

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