In September 2016, as a part of its update of EU copyright rules, the European Commission proposed a draft for a Directive on copyright in the Digital Single Market, which, inter alia, contains an exception that permits researchers to analyze on a large-scale scientific data to which they have lawful access. In Article 3, the Digital Single Market Directive stipulates that
108 Article 6(2)(b) of the Database Directive reads as ‘where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved’
109 Thorburn et al. (2017) p.132
35
“Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject-matter to which they have lawful access for the purposes of scientific research. […] Any contractual provision contrary to the exception […] shall be unenforceable”.
The Digital Single Market Directive defines the phenomenon in Article 2(2) as
“‘text and data mining’ means any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations”
The definition differs advantageously from many definitions that are given in literature and legislation. I welcome the fact that it uses the term ‘automated’ because as explained earlier it makes the definition more technological neutral allowing it to include into its scope technologies that do not yet exist. The term ‘technique’ is, as explained earlier, narrow and does not reflect fully the complexity of the phenomenon. Using the term ‘processing’ would be preferable in the given context. Calling the phenomenon ‘text and data mining’ is not fully accurate because text is a subset of data and ‘mining’ emphasizes extraction process while an analytical analysis lays in the heart of any research. ‘Data analysis’ would be a more precise name for the phenomenon. The way the definition specifies sources of TDM could be improved. It would benefit the definition to name possible sources of TDM in an explicit and inclusive manner as for example – “video, texts, sounds, images or other elements, or a combination of these elements”.
Probably the most noticeable feature of the proposed exception that differs it from both Japanese and the UK exceptions is its scope of beneficiaries. While under the UK and Japanese approach, as long as other conditions are met, any individual can benefit from the respective exceptions, the proposed EU exception recognizes only research organisations, meaning that only individuals associated with a research organisation can benefit from the exception. Unlike the approach used in the research exception in the InfoSoc Directive, which defines beneficiaries implicitly by referring to noncommercial purpose of the activity, the approach taken in the proposed exception is straightforward. The proposal is so explicit regarding beneficiaries that it goes as far as to provide a definition of a research organisation. Article 2(1) reads as
“‘research organisation’ means a university, a research institute or any other organisation the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services:
36 (a) on a non-for-profit basis or by reinvesting all the profits in its scientific research; or (b) pursuant to a public interest mission recognised by a Member State;
in such a way that the access to the results generated by the scientific research cannot be enjoyed on a preferential basis by an undertaking exercising a decisive influence upon such organisation”.
More explanation on research organisation is found in Recital 8 of the proposed Directive. The recital states that the proposed Directive acknowledges that a great diversity of research organisations exist in the EU. Different forms and structures of organisations may rise the question whether a certain organisation should be deemed as a ‘research organisation’ within the meaning of Article 3 of the Digital Single Market Directive. Recital 8 suggests two conditions that should be assessed when deciding on the status of an organisation. First, it has to be considered whether an organisation acts on nonprofit bases. Second, whether the organisation in question is carrying out any public-interest mission that is recognized by the State. The recital explains ‘public-interest mission’ by stating that factors such as public funding, provisions in national laws or public contract indicate such mission.
I welcome the explicit approach taken by the EU Commission in the proposed exception on TDM because it should make application of the proposed exception easier. For comparison, an application of the research exception in copyright requires considering the nature of the activity
“as such”. Despite its well-defined scope regarding beneficiaries, fewer researchers can benefit from the EU proposed exception if compare to the UK or the Japanese exception. In case of the UK exception, any individual regardless whether he or she belong to a ‘research organisation’ can benefit from the exception, while the Japanese exception has even more favorable conditions for researchers because it does not have ‘non-commercial’ requirement. For me to decide whether such a narrow scope in relation to beneficiaries of the exception is appropriate and justifiable, I need to refer to Impact assessment “On the modernisation of EU copyright rules” (the Assessment) issued by the EU Commission to accompany the proposed Directive.
The Assessment identifies problems that are related to TDM and considers four different policy options that can solve these problems.110 First and second policy options are not relevant for identifying reasons why the proposed exception is limited to ‘research organisations’. To explain briefly what the two first policies are about, first policy option is concerned fostering industry self-regulation, the second policy option considers introducing a mandatory exception that would cover
110 The European Commission (2016) pp. 93-108
37 text and data mining for non-commercial scientific research purposes. The third policy option includes limiting the scope of a future mandatory exception to ‘research organisation’ and was used as a foundation for Article 3 of the Digital Single Market Directive. The fourth policy option advocates a mandatory exception, which is applicable to anybody who has lawful access. Third and fourth policy options are scored approximately the same in the Assessment. The decisive factor for choosing the third policy option over the fourth policy option is that the third option is considered to have milder impact on the rightholders. According to the Assessment, a broad scope of the exception would have a significant negative impact on right holders because publishers would no longer be able to license TDM for scientific research purposes to commercial players, which represent an essential market for them, notably in areas such as life science and pharmaceutical.111
After the draft of the Digital Single Market Directive was published, several committees of European Parliament issued their draft opinions on the proposal. In its draft opinion, the Committee on the Internal Market and Consumer Protection argues that limiting the scope of Article 3 of the Digital Single Market Directive to research organisations is counterproductive.112 The committee suggests introducing a simple rule, which does not discriminate between users or purposes.113 Amendment 31 proposed by the committee excludes “made by research organisations” and “for the purposes of scientific research” and is formulated in the following way:
“Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive for reproductions and extractions in order to carry out text and data mining of works or other subject-matter to which they have lawful access”.114
Another draft opinion was issued by the Committee on Culture and Education. This draft opinion generally agrees with the EU Commission on limiting beneficiaries of the new TDM exception to research organization as it decides to keep ‘research organisations’ as part of the wording of Article 3(1) of the Digital Single Market Directive. The Committee suggests changing the wording of Article 3(1) by adding the verb “acquired”. I my opinion, doing so the Committee tries to protect economic interests of copyright holder by indicating explicitly for access to be ‘lawful’ it has to
111 The EU Commission (2016) p. 106
112 The Committee on the Internal Market and Consumer Protection (2017) p.
113 Ibid.
114 Ibid. p. 25
38 has to be acquired, i.e. purchased. The amendment to Article 3(1) suggested by the Committee reads as
“Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject-matter to which they have acquired lawful access for the purposes of scientific research”.
Similar to the UK exemption, the EU proposal states explicitly that the rights granted under the exception cannot be contracted away. Considering non-overridable character of the EU exemption, it is appropriate to remind that contract law is a powerful legal regime that enables intellectual property owners to exclude the exercise of limitations on copyrights and sui generis database rights.
A group of intellectual property owners, namely publishers, is changing their business practices with the view that data analysis will become one of the main future vehicles for interaction with their intellectual property. It is reasonable to believe that publishers and other intellectual property owners will resort to contract law to safeguard their revenues from intellectual property when data analysis becomes a popular research technique.
In contrast to the UK’s focus on the individual, the EU proposed exception focuses on the research organisation. In order to understand content and logic behind employing the term ‘research organisation’ it is worth to consider the impact assessment on the modernisation of EU copyright rules, (the impact assessment) the document that accompanies the Digital Market Directive and explains policy rationale behind the draft legislation. According to the impact assessment, term
‘research organisation’ was adapted to replace non-commercial condition. Using only ‘research organisation’ was meant to include among exception’s beneficiaries Public-Private Partnership (PPP). Such approach should allow the exception to cover research projects, which may have an ultimate commercial outcome. While the UK approach is more favorable as it allows benefiting any individual who conducts data analysis irrespective of whether he or she belongs to any research institution, the EU approach has the potential to cover more instances of data analysis as carried out jointly by research institutions and private entities. The condition ‘non-commercial’ is not desirable in the new exception as it introduces similar obstacles that are associated with scientific research exception
39 5 Conclusions
Article 3 of the Digital Market Directive is certainly able to alleviate the legal uncertainty that surrounds data analysis. The proposal address adequately many legal issues that inhibit data analysis in Europe. The proposal includes an extended scope in relation to beneficiaries if compare to the copyright scientific research exception. Thus, the proposed exception covers data analysis that is carried out jointly by commercial and public entities. The proposal abandons traditional for copyright exceptions ‘non-commercial’ condition making it easier for judiciary to apply the exception because judges no longer have to consider the “nature of the activity as such”, but only need to look at the participants of a research project. Unfortunately, the proposal also has some drawbacks. While the exception is very explicit in relation to beneficiaries, it is not inclusive enough because it creates a privileged group of beneficiaries – research organisations. The reason behind limiting the exception to research organisations is to safeguard economic interests of copyright holders and database owners. However, it is difficult to understand why different entities that pay same amount of subscription fees receive different scope of right in exchange for their payments. Failing to include all the relevant beneficiaries the proposal stops short from unlocking innovation and merely promotes research.
40 6 References
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Apple Computer, Inc. v. Computer Edge Pty., Ltd.
High Court of Australia, 6 May 1983, F.S.R.
537 Football Dataco Ltd and Others v Yahoo! UK Ltd and Others
The Court of Justice of the European Union, 1 March 2012, C‑604/10
Infopaq International A/S v. Danske Dagblades I (2009)
The Court of Justice of the European Union, 16 July 2009, C-5/08
Infopaq International A/S v. Danske Dagblades II (2012)
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