Research Librarians: New TDM exception can be undermined by technical blocking from publishers

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Protect TDM from adverse effects of TPMs
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Today the Association of European Research Libraries (LIBER) issued a warning that the new Text and Data Mining (TDM) exceptions contained in the DSM directive can easily be undermined by technical blocking from publishers. LIBER has come to this conclusion based on the results of a survey on content blocking, carried out by LIBER’s Copyright & Legal Matters Working Group and the UK Libraries and Archives Copyright Alliance (LACA). The submissions to the survey so far confirm fears that Technical Protection Measures (TPM) can be abused by rightholders to limit the usefulness of the exceptions contained in the directive. 

Article 3 of the directive allows reproductions in the context of text and data mining for the purposes of scientific research made by research organisations and cultural heritage institutions. While the article allows rightholders to take measures to ensure the security and integrity of the networks, it does not allow them to prevent researchers from exercising their rights under the exception. It also requires rightholders to remove any TPMs that prevent researchers from exercising their rights but does not specify how quickly this has to happen. 

The survey conducted by LIBER shows that in practice it is difficult for researchers to get rightholders to remove TPMs or other access and use restrictions to content that research institutions have licensed. And in cases where such limitations are eventually removed the process is often long and resource intensive. All of this does not only frustrate efforts to text and data mining by individual researchers, but can also have negative consequences for entire institutions. 

The submissions shared with us by libraries and researchers from a mix of countries (some with TDM exceptions already and some without) show that:

  • Researchers are blocked from accessing many types of content. Journal articles were the most common type of content mentioned (44%) but eBooks, websites, databases and newspapers were also cited.
  • Content blocking takes, on average, nearly a month to resolve. Respondents reported that it took between 24 hours and 2-1/2 months to resolve the content blocking issue, with the mean time being 24 days. A fifth of survey respondents said they were only partially able to resolve the issue and 11% said it was never resolved.
  • Sanctions impact whole communities, not just individual researchers. Actions taken by publishers included 1) suspension of campus-wide access to paid for electronic subscriptions 2) threats to cut off access to content unless TDM was stopped 3) technically limiting downloads to one document only 4) a request for additional payments and 5) the introduction of captcha technology to frustrate data mining

The findings reported by LIBER are extremely relevant in the context of the ongoing implementations of the DSM directive in the EU member states. As we have noted in our implementation guide for articles 3 & 4 of the directive Member states should include in their national laws provisions requiring rightholders to remove TPMs and resolve lock-outs within a maximum period of 72 hours once reported.

In order to better make the case why such a requirement must be included in national implementations LIBER is continuing to collect evidence of abusive practices. If you work for an academic research institutions that has ran into similar issues in the past you can still contribute your experience to LIBER: 

If you or your organisation have ever been blocked from accessing a publisher’s servers for reasons you believe are related to data mining, fill out the survey. The survey can be answered anonymously and will remain open indefinitely. You can also send information on this issue to liberlegalworkinggroup@gmail.com”.

Proposed Council compromise on TDM: still not good enough

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The right to read must be the right to mine!
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We’ve already written about how the Bulgarian compromise proposal for both Article 13 and Article 11 are too broken to fix. Their proposal for Article 3 (Text and Data Mining) does little to alter the major problems standing in the way of a progressive exception for text and data mining.

We’ve continued to follow Article 3 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.

TDM in the Bulgarian presidency proposal

The Bulgarian proposal is nearly identical to the changes already offered by the earlier Estonian plan. It leaves intact the Commission’s obligatory TDM exception that would apply to research organisations (including cultural heritage institutions) for purposes of scientific research. The Bulgarian proposal similarly introduces an additional and optional exception in Article 3 for temporary reproductions and extractions. 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.

In our earlier blog post we wondered whether the existing (and mandatory) exception in the InfoSoc and Database Directives on temporary reproductions arguably already covers the temporary reproductions for text and data mining purposes. In any case, this additional and merely optional exception, for acts that might already be covered under existing law, which can easily be neutralised if rights holders don’t want it, is a weak compromise. It doesn’t address the main concerns we’ve had with Article 3 since the beginning. It also fails to bring much needed harmonization and will instead further the already existing fragmentation of users rights in EU. Continue reading

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

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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. Continue reading

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”. Continue reading

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.

Continue reading

Draft opinion from research committee promotes a TDM exception available to all

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The right to read is the right to mine
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We’ve already reviewed the draft opinions from the European Parliament’s Culture and Education Committee (CULT) and the Committee on the Internal Market and Consumer Protection (IMCO) on the Commission’s proposal for a Directive on copyright in the Digital Single Market. Regarding the introduction of an exception for text and data mining (TDM), the IMCO amendments would strengthen the Commission’s original plan by creating a broad exception for text and data mining that would apply to anyone for any purpose. On the other hand, the changes offered by CULT would further restrict the ability to conduct TDM in the European Union.

TDM for all

This week the Committee on Industry, Research and Energy (ITRE) released its draft opinion on the Commission’s plan. Rapporteur Zdzisław Krasnodębski’s suggested changes focus on the proposed exception for text and data mining. ITRE’s amendments—similar to those offered by IMCO—would support an expansive TDM exception that could be leveraged by entities beyond research organisations, and for purposes beyond scientific research.
Continue reading

Video recordings from our Copyright Directive Webinars

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Last month, we held the first edition of our Copyright Directive Webinars, aimed at explaining the different provisions of the new Copyright Directive and making suggestions on what to advocate for during the implementation process of those provisions at a national level, to expand and strengthen user rights. We are now releasing the presentations and video recordings of the webinars.

The subject of the first webinar was the Press Publishers’ Right. Dimitar Dimitrov (Wikimedia) explained Article 15 in detail and presented our proposal for implementing it at the national level (check his presentation here). 

The second webinar was dedicated to the Text and Data Mining and Education Exceptions. Benjamin White (LIBER) analyzed Articles 3 and 4 (check his presentation here), and Teresa Nobre (COMMUNIA) covered Article 5 (check her presentation here). Continue reading

Copyright Directive – Implementation – March news

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We have yet to see how the pandemic will affect the calendar
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The implementation of the copyright directive is ongoing in several countries, which might be a challenge due to the pandemic (e.g. to hold face-to-face events and meetings) or an opportunity (e.g. some officers working on copyright issues might have more time to focus on it). In the meantime, several EU member states decided to ask the Commission to adjust its calendar of infringement decisions and to suspend the deadlines relating to the pending infringement procedures. We have yet to see how the pandemic will affect the calendar of ongoing implementations.

EU implementation – country updates from last month

Sweden

The Swedish Ministry of Justice recently closed the public consultation on the implementation of Articles 3 to 12 of the Copyright Directive. The Ministry shared a document containing only the opening remarks on how those Articles should be assessed and implemented (according to the officers at the ministry) and the deadline for submitting opinions on those positions ended on 20 March. The document shared by the Ministry of Justice as a part of the public consultation is not the official position of the Swedish Government. The memo serves as a starting point for discussions about the directive and includes a number of questions regarding the articles for the stakeholders involved. 

France

The French audiovisual reform, which transposes the Audiovisual Media Services (AVMS) Directive, as well as Article 17 of the Copyright Directive, was subject to discussion and voting in the National Assembly’s Culture and Education (CULT) Committee, on the first week of March. The CULT Committee worked its way through 1.327 amendments to the proposal. On 5 March, the CULT Committee finalized this effort and approved the amended text. The approved text, in what concerns the implementation of Article 17, is not substantially different from the original proposal that we analyzed here. The text is now scheduled to be discussed in the Assembly’s Plenary session at the beginning of April. The relevant documents will be made available hereContinue reading

Letter to the EU Council: Citizens’ rights matter in the copyright negotiations!

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Citizens’ rights matter in the © negotiations!
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On 19 November 2018, 54 NGOs (including COMMUNIA) representing human rights and media freedom sent a letter to the Council of the European Union. The letter raises ongoing concerns regarding the proposal of the Directive on copyright in the Digital Single Market. The signatories underline that the current proposal risks creating severe impediments to the functioning of the internet and the freedom of expression of all, and urge the Council to take citizens’ rights into consideration during the trilogue negotiations:

For the ongoing trilogue negotiations, we urge you to reject obligatory or “voluntary” coerced filters and to keep the current liability regime intact. Enforcement of copyright must not become a pre-emptive, arbitrary and privately-enforced censorship of legal content.

Moreover, we ask you to hear the voice of academic research that a press publishers’ right will not have the intended effect and will instead lead to a less informed European society.

The letter is not only another call for a productive re-shaping of the future European copyright framework. It is also a strong voice against the predominant market-only narrative around the ongoing reform. NGOs continue to raise concerns related not just to the economic impact of the new Directive, but its deep influence on society, openness, fundamental rights and access to knowledge.

You can read the letter here (pdf).

Not surprisingly, the letter focuses on the most disputed provisions–Article 13 upload filters and Article 11 ancillary copyright for press publishers. Since the beginning of the legislative process COMMUNIA has worked on nearly all parts of the Directive comments (including the new educational exception, TDM provisions and others), and we regret that there seems to be little attention paid to these other important aspects as policymakers focus only on the most controversial parts of the plan.

Legal affairs committee sells out user rights to big content & big tech.

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but you can still #SaveYourInternet
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This morning the Legal Affairs Committee of the European Parliament voted on the report on the proposed Copyright in the Digital Single Market Directive. The results are in and they are not pretty: MEPs have adopted Article 13 which would force open platforms operating in Europe to install upload filters. They have also adopted the controversial press publishers right (art 11). As a bonus to rightsholders they granted more rights to “sports event organisers” and adopted a provision intended to force image search engines to pay for displaying thumbnail images as search results.

This amounts to a massive power grab by rightsholders who will enjoy much more control over how we use the Internet to communicate, share, create and inform ourselves. It is a big step away from an open Internet towards an Internet that functions as a distribution channel for mainstream culture. It is a huge loss for European cultural diversity and the freedom of expression online.

It is telling that the MEPs in the JURI committee have also voted against all attempts to give users more rights. Proposals to introduce EU wide freedom of panorama and to allow the use of protected works in User Generated Content (both of which would merely bring the law in line with reality) were voted down. The MEPs adopted a number of small improvements for users in the fields of education, access to cultural heritage and with regards to Text and Data Mining but most of these come with significant drawbacks.

The education exception contains a license priority clause that allows rightsholders to turn off the exception and dictate problematic licensing terms to educational users, which creates a dangerous precedent for users’ rights and goes against the CJEU ruling on this issue.

The Text and Data Mining (TDM) exception is limited to scientific research purposes only. The expansion that would open TDM to everyone for every purpose (which is crucial for the development of technologies such as artificial intelligence in the EU) is merely optional and will not apply across the EU as a whole.

Taken as a whole, the JURI committee’s vote shows an utter disregard for the rights of citizens in the digital environment. It is telling that both the Civil Liberties and the Consumer Protection committees have prepared much more balanced reports that have been completely ignored by the members of the Legal Affairs committee. This shows that lawmakers still treat the rights and interests of citizens and creators as spare change in the the fight between big content and big tech.

Today’s round has clearly gone to ‘big content’ in spite of warnings from pretty much anyone other than the rightsholders that this outcome will have disastrous consequences for the open Internet and our freedom of speech. Citizens’ freedom of expression should not be the function of an arrangement between rightsholders and big technology companies. It is a right that needs to be defended on its own merits and it is extremely worrisome that EU lawmakers have effectively decided to give big technology companies – that are based outside of the EU –  the responsibility to decide how European citizens can express themselves online.

We will continue to fight for the rights of users and creators and to oppose the censorship machine. The first step will be to convince enough MEPs that a decision to sell out citizens rights to big content and big tech merits a decision by the whole European Parliament: