The Estonian Presidency’s new (and optional) TDM exception: small potatoes

Man bekijkt een schilderij door een vergrootglas, Honoré Daumier, 1847
The reform needs major fixes, not minor tweaks
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Ahead of this week’s EU Council meetings of the Working Party on Intellectual Property (Copyright), the Austrian government has helpfully shared the Estonian Presidency’s revised compromise proposal on Articles 3 and 6 (including relevant recitals).

We’ve been following TDM with interest since the European Commission published its proposal on copyright in the Digital Single Market. Even though the Commission’s exception for TDM would be mandatory, we criticised their plan as not going far enough, as it would limit the beneficiaries of the exception only to research organisations, and only for purposes of scientific research.

The Estonian revisions leaves intact the Commission’s obligatory TDM exception that would apply to research organisations for purposes of scientific research. And, as expected, it continues to recommend that the beneficiaries originally contemplated by the Commission be expanded to include cultural heritage institutions. But the most significant change offered in this updated compromise proposal is an additional and optional exception in Article 3:

(5) Member States may provide for an exception or a limitation […] for temporary reproductions and extractions of works and other subject-matter that form an integral part of the process of text and data mining, provided that the works and other subject-matter are accessed lawfully and that the use of the works or other subject-matter for text and data mining is not expressly reserved by the rightholder.

This additional exception would apply to beneficiaries other than research organisations, and for uses other than scientific research. But those acts would be limited in that they only would cover temporary reproductions and extractions, and only if the rightsholder does not prohibit it.

The rationale for this new, optional exception is strange. The Estonian revision states:

Consideration should be given to the fact that users of text and data mining techniques may be faced with legal uncertainty as to whether temporary reproductions and extractions which are an integral part of the process of text and data mining may be carried out on publicly available and lawfully accessed works and other subject-matter, in particular when the reproductions or extractions made for the purposes of the technical process may not fulfil all the conditions of the existing exception for temporary acts of reproduction in Article 5(1) of Directive 2001/29/EC.

While this change might have good intentions, we have to wonder: doesn’t the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already cover the temporary reproductions for text and data mining purposes outlined in the new exception? What reason or evidence is there (beyond the vague assertion reproduced above) that such an additional exception is even needed?

But even if these types of temporary reproductions and extractions aren’t adequately covered by the existing directives, the real problem with the Estonian revised proposal is that the exception has no teeth whatsoever. It states:

This optional exception or limitation should only apply […] insofar as the rightholders have not reserved the right to make reproductions and extractions for text and data mining, for example by agreement, unilateral declaration, including through the use of machine readable metadata or by the use of technical means.

So, not only is the exception completely optional (meaning Member States have no obligation to implement it), it also permits rightsholders to essentially void it through contract or technological protection measures (TPMs). This is weak sauce indeed.

There is a much better way to reduce legal uncertainties related to text and data mining: Instead of pushing too hard on a new exception for TDM that may or may not get picked up by Member States, the EU legislator should focus on fixing the Commission’s flat TDM exception in Article 3. The Parliament and the Council should amend the original proposal to facilitate 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 as the sole beneficiaries of the proposed exception. The exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed under the proposed exception.

In absence of an exception that allows TDM for anyone for any purpose, we would be better off with the existing situation. As the justification of the Estonian proposal points out, there is some uncertainty whether temporary reproductions for the purpose of TDM requires permission from rightsholders, but this uncertainty is much preferable to what’s on the table in the Council right now.

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