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The text and data mining exception in the proposal for a directive on copyright: why the European Union needs to go further than the laws of member states.

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Abstract

The European Union is currently debating the adoption of a copyright exception for text and data mining (TDM). Some member states have jumped the gun by adopting their own TDM exception. From the various possible options, the European Union should adopt the broadest possible TDM exception, to boost the international competitiveness of its knowledge economy – notably against countries with copyright laws more favourable to research and innovation such as the US or even a post-Brexit Britain.
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
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Title and citation
The text and data mining exception in the proposal for a directive on copyright: why the
European Union needs to go further than the laws of member states.
Please cite as: Nicolas Jondet, The text and data mining exception in the proposal for a
directive on copyright: why the European Union needs to go further than the laws of member
states, Propriétés Intellectuelles, no. 67 (April 2018): 2535.
Abstract
The European Union is currently debating the adoption of a copyright exception for text and
data mining (TDM). Some member states have jumped the gun by adopting their own TDM
exception. From the various possible options, the European Union should adopt the broadest
possible TDM exception, to boost the international competitiveness of its knowledge
economy notably against countries with copyright laws more favourable to research and
innovation such as the US or even a post-Brexit Britain.
Contents
Introduction
I. Text and data ming and EU copyright law
A. Text and data mining: a promising process encroaching on copyright
B. The terms of the debate on a copyright exception
II. The United Kingdom: a trailblazer with its exception for text and data analysis
A. Review, resolve and risk-taking on copyright exceptions
B. The 2014 exception: a broad exception
III. France and its two data mining exceptions
A. Resistance to, then acceptance of, the principle of an exception
B. Two narrow exceptions whose implementation is suspended and long-term survival in
doubt
This article is the adaptation in English of the article published in the French law review Propriétés Intellectuelles
in April 2018 : Nicolas Jondet, ‘L’exception pour le data mining dans le projet de directive sur le droit d’auteur :
Pourquoi l’Union européenne doit aller plus loin que les législations des États membre’ (2018) 67 Propriétés
Intellectuelles, p. 25-35, which is also available in open access on my personal website and on online repositories
such as Academia, Research Gate or SSRN. The French article is itself an adaptation of a presentation given at
Paris Descartes on October 3, 2017 for the inaugural JUSPI conference. The author would like to thank the
participants at the conference for their feedback which helped improve the article. The author would also like
to thank the editors of Propriétés Intellectuelles for their help in drafting the article in French. Lastly, the author
would like to thank the people who have given feedback on the English version of the article. Opinions and errors
remain mine alone. Compared with the French article, the English version contains minor editorial changes,
additional references in some footnotes and a bibliography.
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IV. Policy options at European level and dialogue with member states
A. TDM exceptions in the directive proposal and the European institutional debate
B. Developments in some Member states
1. Ireland, Estonia, Germany
2. France: new government, new policy?
3. Brexit and the scenario of the Americanisation of UK exceptions
V. Arguments in favour of the broadest possible TDM exception
Bibliography
Introduction
[*Page 25 in the original]
Text and data mining (TDM) is a process by which computer algorithms analyse large amounts
of data to identify new patterns and discover new knowledge. TDM is often presented as a
new frontier in research and innovation, opening new avenues of intellectual inquiry and of
business opportunity in a wide range of fields such as medical research, artificial intelligence,
linguistics, marketing or finance. However, an inherent part of this process requires the
copying of vast amounts of content such as articles in scientific journals, books, pictures,
music recordings or films, all of which are protected by intellectual property rights. This mass
scale reproduction of works raises the question of the compatibility of TDM with copyright
law. In the context of international competitiveness that is increasingly focused on the
knowledge economy, lawmakers and courts around the world are challenged to find the right
balance between enabling the computerised analysis of content and protecting the creators
of content. In that quest, the copyright regime of the United States is often presented as a
model, providing protection for both creators and users of content, thus fostering research
and the emergence of new technology companies as well as promoting the creative and
entertainment industries.
In Europe, the discussion on the balance between TDM and copyright started at the
beginning of the present decade in some member states, and is now also being conducted by
the European Union (EU). In September 2016, the debate entered a crucial phase when the
European Commission published its proposal for a directive on copyright in the digital single
market, which includes, amongst other things, the proposal to create a TDM exception in EU
copyright law.
1
The EU debate is expected to last at least until the end of 2018. However, even
before new rules have been agreed at European level, several member states have already
modified their copyright laws to include exceptions for data mining, each one of those
exceptions having different characteristics. This issue of a TDM exception thus raises a series
of questions. The overarching one is normative: what kind of TDM exception should the EU
adopt? To answer that question, it is worth examining the exceptions already enacted in
member states to see which policy rationales have underpinned their adoption, as well as to
see their specific characteristics. It is of interest to identify how the existing European
1
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market
- COM(2016) 593 final, European Commission, 14 September 2016 [COM(2016) 593 final], article 3.
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framework shaped those national exceptions, and in turn, to see how the national
experiences are shaping the debate at EU level.
In the first part we will detail the copyright issues relating to TDM as well as the terms
of the debate regarding the solutions to such issues (I). We will then focus on the experiences
in the United Kingdom and France. In 2014, the United Kingdom became the first country in
Europe to introduce a TDM exception in its copyright law. In part (II) we will show how this
trail-blazing decision evidences a determination to bolster research and innovation as well as
a willingness to test the limits of the European copyright framework. France followed in these
reformist footsteps in 2016 with its own TDM exception. In part (III) we will look at the fraught
legislative history of the French exception and explain how the French Parliament overcame
the resistance of the government towards the idea of an exception. We will also show that
the compromise found by Parliament results in a much narrower exception than the British
one. Then, in part (IV), we will look at the debate at EU level, addressing the complex interplay
between policy making at EU and national level. When the European Commission proposed
its new copyright directive, two exceptions, with different characteristics, were already
implemented in the EU. More countries have adopted their own exceptions without waiting
for the conclusion of the EU debate. And others have undergone important political changes
which may impact policy at national and EU level. Chief amongst these is the vote by the UK
to leave the EU which may leave the champion of the TDM exception free to align itself with
the US copyright laws. Lastly, in part (V), we argue that the EU should adopt the widest
possible TDM exception, in particular to boost the international competitiveness of its
knowledge economy.
[*Page 26 in the original]
I. Text and data ming and EU copyright law
In Europe, the discussion on the copyright challenges posed by data mining starts at the
beginning of the current decade. Reports commissioned by governments play a crucial role in
framing the debate and in offering policy options. The UK, France and the EU, the three
jurisdictions this article focuses on, have commissioned the following reports on TDM: for the
UK, the review from Professor Ian Hargreaves;
2
for the EU, the report from the De Wolf &
Partners law firm, chaired by Jean-Paul Triaille,
3
and the report by the European Expert Group
chaired by Professor Hargreaves,
4
both of which were delivered to the European Commission;
and, finally, for France, the review chaired by Jean Martin for the High Council on Artistic and
Literary Property (Conseil supérieur de la propriété littéraire et artistique (CSPLA)).
5
These
reports all present data mining as a promising avenue for the discovery of new knowledge
2
Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth’ (UK Intellectual Property
Office, 2011) [Hargreaves Review].
3
Jean-Paul Triaille, Jérôme de Meeûs d’Argenteuil and Amélie de Francquen, ‘Study on the Legal Framework of
Text and Data Mining’ (De Wolf & Partners for the European Commission, March 2014) [De Wolf Report].
4
Ian Hargreaves, Lucie Guibault, Christian Handke, Peggy Valcke, Bertin Martens, Ros Lynch and Sergey Filippov,
‘Report from the Expert Group on the standardisation in the area of innovation and technological development,
notably in the field of text and data mining’ (Expert Group for the European Commission, April 2014) [Expert
Group Report].
5
Jean Martin and Liliane de Carvalho, ‘Rapport de la mission sur l’exploration de données (« Text and Data
mining »)’ (Conseil Supérieur de la Propriété Littéraire et Artistique, July 2014) [Rapport CSPLA].
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but one which can encroach on copyright (A). Although there is consensus on this diagnosis,
the potential solutions are the subject of a debate, the terms of which we will detail (B).
A. Text and data mining: a promising process encroaching on copyright
TDM can be defined as the automated processing of digital materials, which may include
texts, data, sounds, images or other elements, or a combination of these, in order to uncover
new knowledge or insights.”
6
This broad definition covers a wide range of practices. Anybody
with a computer and an appropriate algorithm for analysis can mine the data stored on their
computer to gain new insights. Of course, the more powerful the computer, the better the
algorithm, and the higher the quantity and quality of data available, the more fruitful the data
analysis will be. Given its cutting-edge nature and the costs involved, it is unsurprising that
TDM is being applied primarily in universities, businesses or public services for projects where
significant financial, human and technical resources can be mobilised. Examples of uses, or of
potential uses, of TDM are therefore generally linked to either research in universities or
research conducted by businesses to improve their commercial services. Amongst the
examples given in the reports, we can highlight the UK project Text2genome which has,
thanks to the analysis of millions of publications, mapped the human genome.
7
The analysis
of large quantities of videos can also enrich knowledge in meteorology.
8
Researchers in social
sciences can benefit from TDM in a wide range of scenarios. For instance, a political scientist
could analyse the evolution of the use of the term ‘digital’ within policy making in the
European Union.
9
TDM is also beneficial to private companies and can be applied in finance,
marketing, or industry.
10
Potentially, TDM can be applied in any type of research on any type
of content. And ultimately, once costs have significantly decreased, access to the process will
be democratised. It is therefore important to bear in mind that, in principle, TDM can be
implemented by anyone, for any kind of purpose and on any type of content.
The processing of a vast amount of content, inherent to data analysis, raises copyright
questions. As the report for the CSPLA explains, prior to the analysis of data is the process of
collecting data, which requires the copying of all or parts of items of digital content.
11
Furthermore, it is often necessary to transform data to make it exploitable by computer tools,
by, for instance, converting a PDF document into an XML file. Both the collection and the
transformation of data can engage the intellectual property rights recognised in the Union.
Indeed, the 2001 copyright directive
12
recognises that the creator of an original work, such as
a book, a musical composition or a database, has the exclusive rights of reproduction and
dissemination of this original work. Furthermore, European law recognises, through a 1996
directive, a specific right for the producers of non-original databases.
13
This sui generis right
6
De Wolf Report, supra note 3, p. 17.
7
Rapport CSPLA, supra note 5, p. 11.
8
Expert Group Report, supra note 4, p. 10.
9
Id.
10
Id.
11
Rapport CSPLA, supra note 5, p. 20.
12
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of
Certain Aspects of Copyright and Related Rights in the Information Society, OJ L 167, 22.6.2001, p. 10 [Directive
2001/29].
13
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of
Databases OJ L 77, 27.3.1996, p. 2028 [Directive 96/9].
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gives them, amongst other rights, exclusive prerogatives over the extraction and re-utilization
of the content of their database. Focusing on copyright, the fact that creators of original works
are granted numerous rights, such as the right to authorise the reproduction or
communication to the public of the work,
14
means that anyone wishing to copy or disseminate
a protected work must, by default, obtain the prior authorisation from the copyright holder
who can make this authorisation subject to receiving a payment. These copyrights are
understood extensively by the courts and apply fully in the digital context. Thus, the copying
of any image found on the internet, of any movie, newspaper article, video clip from a
YouTuber, or scientific article, must have been authorised by the rightsholder. The same goes
for the dissemination of those works, especially on the internet. It is also worth noting that
European law offers an additional protection for copyright holders in the digital context.
[*Page 27 in the original] The law protects the technological protection measures, also known
as Digital Rights Management systems (DRMs), such as anti-copy software which the content
industries insert in cultural products like movies sold on DVDs or in digital download form, by
prohibiting the circumvention of those digital locks.
15
This broad protection offered by copyright is not absolute, however. All copyright
systems contain some exceptions which allow third parties to use content without the
consent of the rightsholder, notably in instances where it would not be practical or sensible
to expect such an authorisation. There are, for instance, copyright exceptions for news
reporting or for parody. One of the key questions is thus to establish whether a copyright
exception for TDM is recognised under EU law. The answer should have been simple. The
2001 directive sets up, in Article 5, an exhaustive list of allowed exceptions for all the member
states of the Union. Therefore, either the TDM exception is in this list and it is allowed, or it
is not. However, the issue is rendered more complex by two issues linked to the European
harmonisation process, which was mindful of respecting the legal traditions of member states
on exceptions.
16
First, amongst the twenty or so exceptions only one of them, the transient
copying exception, is mandatory in all member states. The other exceptions are optional,
meaning that member states have the choice to implement them or not in their national law.
Second, and more importantly, the wording of the exceptions in the directive is broad enough
so that each exception could be implemented in different ways in member states. Combined
with the challenge of multilingualism, which is inherent to the European project, those two
issues often make it difficult to determine the exact scope of most exceptions. For instance,
the directive provides, in article 5(3)(a), an exception for use for the sole purpose of
illustration for teaching or scientific research. As Séverine Dusollier explained, only some
member states have implemented this exception and amongst those who did there are
significant differences of interpretation depending on the language of the relevant country.
17
Depending on the language, the term illustration can be applicable to both teaching and
research, in which case there is only one exception for illustration; or the term ‘illustration’
applies only to teaching in which case there are effectively two exceptions, one for illustration
for teaching and another for research. As we will see, this difference in interpretation will play
a part in the debate on the TDM exception. At this stage though, what can be said with some
14
Directive 2001/29, supra note 12, articles 2 and 3.
15
Id, article 6.
16
Id, recital 32.
17
De Wolf Report, supra note 3, p. 61.
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certainty is that, at the beginning of the decade, neither EU law nor the copyright laws of
member states explicitly provided for a TDM exception.
B. The terms of the debate on a copyright exception
The issue of the compatibility of TDM with copyright first arose in the field of academic
research. The increasing number of researchers voicing concerns about their inability to use
TDM processes on the scientific publications they subscribed to, forced EU and national
authorities to address the issue. Two main solutions were discussed. The first option was a
contractual solution through which rightsholders, especially publishers of scientific journals,
would agree, in their licensing agreements and terms of services, to allow their customers to
mine their content. The second option was a legislative solution whereby copyright law would
be adapted to include a TDM exception. Scientific publishers, supported by other
rightholders, favour the contractual solution whereas researchers, supported by other users
such as companies in the digital economy, argue for a copyright exception. Advocates of an
exception point to other jurisdictions where copyright laws are more favourable to research
and innovation. For instance, in 2009 Japan introduced an exception applicable to all
“information analysis” without distinction and thus including analysis for commercial
purposes.
18
But above all, it is US copyright law which is presented as a model of flexibility
and of friendliness to researchers, internet start-ups and innovation. Its flexibility lies in the
method of creation of the exceptions. Whereas the European model sets, in statutes,
exhaustive lists of approved exceptions which can only be modified through the legislative
process, US law recognises a general principle of fair use which gives the courts a lot of
discretion to authorise new uses of protected content by third parties. This fair use doctrine
has often been applied by the courts in a way that is friendly to innovation and technology
companies. The US courts have, for instance, in the Authors Guild v Google case, authorised
the digitisation by Google of book collections of some American universities even though this
mass copying of books had been done without the authorisation and against the wishes of
copyright holders.
19
It is against this copyright model, and the dominance of American
technological innovation, that the innovation-friendliness of EU copyright law is often
assessed.
A key question is thus to know how far the EU could and should go to try to emulate
the US model. Can it import the US fair-use doctrine, or would a copyright exception be
enough? The possibility of a new exception raises the question of its characteristics. Some
elements of consensus emerge in the discussion. It seems a given that a TDM exception could
only be invoked if the user has had lawful access to the content. This is an essential guarantee
for rightholders in general, and for scientific publishers in particular, as it ensures that people
wishing to mine their corpus of articles need to pay the subscription fees for their services. In
exchange, it seems also established that such an exception should be a mandatory rule, one
that cannot be overridden by contract. Other elements, however, such as the remit of the
18
Japan Copyright Act [Translation by Yukifusa Oyama et al. for the CRIC (Copyright Research & Information
Center) dated October 2016], Article 47-7 ; see notably, De Wolf Report, supra note 3, pp. 10-12 and, in French,
Makoto Nagatsuka, ‘L’exception de data mining en droit d’auteur japonais’ (2016) 3 Revue Francophone de la
Propriété Intellectuelle 68, esp., p. 7.
19
Authors Guild v. Google (2015) 804 F. 3d 202 upholding the first instance decision in Authors Guild v. Google,
954 F.Supp.2d 282 (S.D.N.Y.2013).
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exception, are debated: who the beneficiaries should be (researchers, companies, all the
users), for which type of use and purpose (commercial or not) and on which types of content?
To those questions national and European legislators offered different answers.
[*Page 28 in the original]
II. The United Kingdom: a trailblazer with its exception for text and
data analysis
The UK was the first country in the EU to address the conflict between copyright and TDM.
This enquiry about the adaptation of copyright to TDM was part of a broader review of the
overall framework for UK copyright exceptions conducted by the Hargreaves review. The
statutory changes introduced in response to the review evidenced the determination of the
British government to bolster innovation, as well as a willingness to take risks within the
European framework (A). The principle and remit of the TDM exception introduced in 2014
tested the limits of this European framework (B).
A. Review, resolve and risk-taking on copyright exceptions
The report by Professor Hargreaves, handed to the British government in 2011,
20
played a
crucial part in the emergence and framing of the debate on the TDM exception. Ian
Hargreaves’s mission was to review the main intellectual property rights and identify the
aspects of those rights that were creating obstacles to innovation and economic growth. We
can note here how the terms of reference as well as the nature of the commissioner, the
Department for Business, Innovation & Skills, sets the review in the Anglo-Saxon tradition of
a utilitarian approach to intellectual property rights. Amongst all the intellectual property
rights, the review identified copyright, especially the rules regarding exceptions, as the most
ripe for reform. The review first looked at the overall architecture of the system and then
addressed specific exceptions.
The overall assessment of the system of exceptions contemplates the US model but
satisfies itself with the European anchoring of the British system of exceptions. The
government wanted to know, amongst other things, whether it was desirable and possible to
adopt a US-style fair use system. The question was whether importing this doctrine would
create a more welcoming environment for innovation in the digital economy. David Cameron,
the then Prime Minister, had, whilst launching the work of the Hargreaves review, referenced
the founders of Google who had said they could never have started their company in Britain
due to the lack of fair use.
21
On the opportunity of such a transplant, the review concluded
that fair use could bring some benefits in terms of flexibility for copyright but that fair use
was only one of the aspects explaining the success of US internet companies; other much
more important factors were attitudes to business risk and investor culture. On the possibility
of such a transplant, the review concluded that it was not possible under current EU rules.
22
The review went on to make a series of recommendations to reform UK exceptions. In
response, the government passed legislation through parliament in 2014 to modify the
20
Hargreaves Review, supra note 2.
21
Id, p. 44.
22
Id, p. 46.
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exceptions in the Copyright, Designs and Patents Act 1988 (CDPA).
23
These reforms modify
some existing exceptions and add new ones. In the category of the modified exceptions we
can highlight the broadening of the research exception which was until then only applicable
to “literary, dramatic, musical or artistic” works, but is now applicable to any type of work,
including audio-visual works.
24
In the category of new exceptions, the introduction of a
parody exception did not raise much difficulty as the UK seized the opportunity offered by
the 2001 directive. The introduction of an exception for private copying could have been
equally painless. The directive sets the following framework: it allows for such an exception
but makes it conditional on the setting up of a system of compensation for rightsholders, by
way of a levy to compensate the harm done to rightholders by the copying of their works.
However, the UK government decided to create a private copying exception without a
compensation scheme. The UK exception was meant to be compatible with EU law because
it was designed to be so narrow that it would not cause any harm (or only minimal harm) to
the rightholders, making a levy unnecessary.
25
Even before EU authorities could say anything,
British rightsholders immediately asked for a judicial review of the provision. The High Court
in London sided with them in 2015 by ordering the repeal of the provision by ruling that the
government had not proved that the absence of a levy scheme would cause no or very little
harm to the rightsholders.
26
[*Page 29 in the original] In this instance, then, the UK
government saw its original interpretation of EU rules on private copying rebuffed by the
courts. Its interpretation of the directive on the TDM exception was arguably even more
daring.
B. The 2014 exception: a broad exception
The UK felt it could introduce such an exception even though it was not listed in the 2001
directive. The TDM exception was understood as a mere extension of the general research
exception said to be found in article 5(3)(a) of the directive. This analysis by the UK
government of the TDM exception has not been challenged in court by either the rightholders
or the European institutions. And the new section 29A of the CDPA thus provides for a
copyright exception
27
for “text and data analysis” for non- commercial research. It is a broad
exception. It applies to all types of content and to any (non-commercial) research. The term
“research”, in the absence of opposite case law, has always been understood in a very broad
way, applying to any person doing research irrespective of her status or that of the institution
23
The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations (SI
2014/1372) [SI 2014/1372]; The Copyright and Rights in Performances (Disability) Regulations (SI 2014/1384);
The Copyright (Public Administration) Regulations (SI2014/1385); The Copyright and Rights in Performances
(Quotation and Parody) Regulations (SI 2014/2356).
24
SI 2014/1372, supra note 23, regulation 3(1).
25
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations (SI 2014/2361)
[Repealed].
26
British Academy of Songwriters, Composers And Authors & Ors, R (On the Application Of) v Secretary of State
for Business, Innovation And Skills [2015] EWHC (Admin) 1723; BASCAM v Secretary of State [2015] EWHC
(Admin) 2041; see on the case notably Julian Wilkins, ‘Legislation to introduce copyright exception law with no
accompanying levy scheme deemed unlawful’ IRIS, August 2015 and on the history of the private copying
exception in the UK see, Hector MacQueen, ‘Performance Rights in Music: Some Perspectives from Economics,
Law and History’ in The Artful Economist (Springer, 2016) pp. 113-31.
27
The 2014 reforms do not add a specific exception for the sui generis right of database producers.
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she might be associated with.
28
However, the benefit of the exception is limited to non-
commercial research. It is worth remembering that the distinction between commercial and
non-commercial research was only introduced in the UK by the implementation of the 2001
directive and that commentators have highlighted how difficult it can be to implement.
29
And
it is notably to avoid such difficulty that Hargreaves had recommended that the UK
government should lobby the European institutions to ensure that any future TDM exception
also applied to commercial research.
30
Another key point is that the UK exception cannot be
overridden by contract. In return, section 29A provides many guarantees for rightsholders.
First, there is the requirement of lawful access to the work. Then, the user must, in so far as
it is possible, accompany the copy of a work with a sufficient acknowledgement. More
importantly, the use of the copies for any activity other than TDM or the communication of
those copies is forbidden and is, in the absence of prior agreement by the rightholders, an
infringement.
The UK experience is interesting on many counts. The UK identified a need to modify
its copyright law to accommodate TDM and promote research and innovation. Doing so
meant revisiting copyright arbitrages between relevant stakeholders and finding a new
balance to satisfy users and rightholders. But it also meant testing the existing EU framework
which did not provide for a specific TDM exception. Furthermore, UK policy aimed to modify
EU rules to enable TDM for commercial purposes. We can draw some parallels between the
UK government’s attitude on copyright and that exhibited at the time towards EU rules more
generally. Indeed, the reformist copyright agenda was concluded in 2014 at a time when the
government was increasingly eager to revisit the UK’s relationship with the EU. David
Cameron, pressured by the rise of Euroscepticism, notably in his own party, had already
promised to hold a referendum on exiting the EU if re-elected. He also promised to engage
with European institutions in a process of renegotiation of the UK‘s relationship with the EU,
the failure of which bolstered support for the pro-Brexit campaign.
31
In both copyright and
politics, the UK government showed a willingness to take risks in pursuit of UK policies.
28
See notably: Charlotte Waelde, Abbe Brown, Smita Kheria and Jane Cornwell, Contemporary Intellectual
Property, (Oxford University Press, 4th ed, 2016) [Waelde et al], p. 183 noting that “the meaning of the word
‘research’ appears never to have been judicially considered in the UK”; Nicholas Caddick, Gillian Davies and
Gwilym Harbottle, Copinger and Skone James on Copyright (Sweet & Maxwell, 17th ed, 2016) [Copinger],
paragraph 9-37 pointing that “in the equivalent Australian provision, ‘research’ has been held to have its
ordinary dictionary meaning, namely, the “diligent and systematic inquiry or investigation into a subject in order
to discover facts or principles [De Garis v Neville Jeffress Pidler Pty Ltd (1990) 18 I.P.R. 292 (Fed. Ct of Australia)
at 298-299]” and Lionel Bently and Brad Sherman, Intellectual Property Law (Oxford University Press, 4th ed,
2014) [Bently and Sherman], p. 236, arguing that the UK research exception would “certainly cover photocopying
documents for the purposes of an academic research project, whether by a professor, doctoral student, or
undergraduate researching an essay” and “would also cover the acts of independent researchers investigating
topics, as well as people researching their family history”.
29
Waelde et al, supra note 28, p. 184 noting that “there is a large amount of ambiguity in the distinction between
commercial and non-commercial research”; Copinger, supra note 28, paragraph 9-37: “Quite what the limits are
of non-commercial research is not clear”; Bently and Sherman, supra note 28, p. 237: “Much research…will
occupy a difficult middle ground”.
30
Hargreaves Review, supra note 2, p. 48, paragraph 5.26.
31
EU referendum timeline: Countdown to the vote, BBC News, 20 February 2016; Maxime Vaudano, « Brexit » :
comment Cameron s’est laissé prendre à son propre piège, Le Monde, 24 juin 2016.
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
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III. France and its two data mining exceptions
The debate on TDM started in France as it was concluding in the UK. The debate in France
was rowdier, the discussions more conflictual, and the constraints linked to the European
framework, as well as the uncertainties about its probable evolution, more pressing. The
opposition between the government and the parliament made the recognition of the
principle of an exception very uncertain for a long time (A). The compromise that would
eventually be adopted resulted in two very narrow exceptions whose implementation is
suspended and whose long-term survival is in doubt (B).
A. Resistance to, then acceptance of, the principle of an exception
In July 2014, the High Council on Artistic and Literary Property (Conseil supérieur de la
propriété littéraire et artistique (CSPLA)), the advisory body in charge of advising the Ministry
of Culture on copyright issues, submitted its report on TDM.
32
The approach, the analysis and
the recommendations of the French report were almost the opposite of those of the
Hargreaves Review. While the British report asked how to adapt copyright to the needs of the
economy, the French report was more concerned with affording as much protection as
possible to copyright against TDM, which it compares to a parasite.
33
In terms of legal analysis,
the CSPLA produced an in-depth analysis which, we contend, describes more accurately the
position regarding the EU legal framework. The report highlighted that rights receive an
extensive interpretation whereas exceptions are narrowly interpreted. [*Page 30 in the
original] It concluded that none of the exceptions in French copyright law offered enough
guarantees to allow TDM; especially not the teaching exception,
34
the French implementation
of article 5(3)(a) of the directive, given its very limited scope in French law.
35
According to the
report, it is not possible to modify national law without a change in the EU framework.
36
Implicitly, it rejected the British analysis on the ability to create a new exception within the
existing framework. Crucially, for the French report the creation of such a new exception was
not even necessary as contractual solutions should be promoted.
37
It proposed to “favour
self-regulation over statutory changes” and set “a two-year period after which a sectorial
overview will be conducted and the need for legislative change assessed”.
38
The CSPLA report
also recommended that the French government should share this wait-and-see approach and
oppose any initiative to reform copyright at European or international level.
39
Once more, this
was in stark contrast with the Hargreaves review which had urged the UK government to press
the EU to change its copyright law. The French government followed the recommendations
of the report. The question of a possible TDM exception was not addressed during the
discussions on the Law on Creativity (Loi Création) even though the law modified some
32
Rapport CSPLA, supra note 5.
33
Id, p. 2.
34
French Intellectual Property Code, article L. 122-5 3° e.
35
Rapport CSPLA, supra note 5, p. 30.
36
Id, p. 45.
37
Id, p. 38.
38
Id, p. 4, recommendations 5, 6 and 7 respectively.
39
Id, p. 5, recommendations 11 and 12.
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
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copyright exceptions.
40
Similarly, the Secretary of State for the Digital Economy did not
include a TDM exception in the bill that would eventually become the Law for a Digital
Republic (Loi pour une République Numérique).
However, during the debate on the Law for a Digital Republic, the members of the
Assemblée nationale, the lower house of parliament, were responsive to the demands the
proponents of the idea of a TDM exception. Those demands had notably been made by
research institutes during the online consultation process on the draft bill as well as by the
French Digital Council (Conseil national du numérique (CNNum), the advisory body which
advises the government on digital issues, which, quoting the British analysis, and noting it had
not been challenged by European institutions, had recommended the creation of a dedicated
TDM exception.
41
The government did not follow those recommendations and the bill
submitted to parliament did not provide for a modification of copyright law. The government
would pursue this opposition throughout the debate and would be supported by the relevant
committees in the lower house. Although the committees recognised that data mining
needed to be made easier, they highlighted the lack of a specific exception in the 2001
directive and pointed to the soon-to-be-announced proposal by the EU on the topic.
42
In the
legal affairs committee, the rapporteur, Luc Belot, and the secretary of state, Axelle Lemaire,
rejected the British analysis, arguing it was in breach of EU law and explained it would be
premature to introduce an exception in French copyright law.
43
The committee on culture
mentioned the hopes raised by promising new contractual solutions promoting TDM.
44
Despite those strong arguments, the idea of an exception was pushed by a large cross-party
consensus in the lower house. Many members of parliament, led, on the left, by Christian
Paul, Isabelle Attard et André Chassaigne, and, on the right, by Nathalie Kosciusko-Morizet,
submitted a series of amendments in support of an exception to improve the competitiveness
of French researchers vis-à-vis those of the US and the UK. They also wanted to force the
executive to clarify its negotiating position in European negotiations, and to ensure it would
strongly support an EU exception.
45
In the end, the lower house adopted the Kosciusko-
40
Loi n° 2016-925 du 7 juillet 2016 relative à la liberté de la création, à l’architecture et au patrimoine (Law 2016-
925 on the freedom of creation, on architecture, and on heritage).
41
CNNum, ‘Avis n°2015-3 du Conseil national du numérique relatif au projet de loi pour une République
numérique’ (30 Novembre 2015), p. 15 ; See also the demands made by French research institutes during the
online consultation phase of the bill at www.republique-numerique.fr : CNRS - DIST - RENAUD FABRE, « Une
durée d’embargo plus courte, ne pas entraver le TDM (fouille de texte et de données) et ne pas interdire une
exploitation commerciale » (30 septembre 2015) ; CONSORTIUM COUPERIN, « Proposition : Exception de fouille
de textes et de données » (2 octobre 2015) ; INRA (DIST ODILE HOLOGNE), « Proposition d’amendement :
exception de fouille de textes et de données » (13 octobre 2015).
42
See notably : Marietta Karamanli, ‘Rapport d’information n° 3366 déposé par la commission des affaires
européennes, portant observations sur le projet de loi pour une République numérique (n° 3318), et présenté
par Mme Marietta Karamanli.’ (Assemblée nationale, 16 Decembre 2015) [‘Rapport Karamanli' n° 3366], p. 42.
43
Luc Belot, ‘Rapport 3399 fait au nom de la commission des lois sur le projet de loi (n° 3318) pour une
République numérique, fait par M. Luc Belot’ (Assemblée nationale, 15 January 2016) [Rapport Belot n° 3399],
p. 277.
44
Emeric Bréhier, ‘Avis n° 3389 présenté au nom de la commission des affaires culturelles et de l’éducation sur
le projet de loi pour une République numérique par M. Emeric Bréhier ’ (Assemblée nationale, 13 January 2016),
p. 60.
45
Rapport Belot n° 3399, supra note 43, p. 277; See also: Nathalie Kosciusko-Morizet et al., Amendement 180
(Assemblée nationale, 15 January 2016) [Adopté] ; Isabelle Attard et al., Amendement 89 (Assemblée
nationale, 15 January 2016) [Tombé] ; André Chassaigne et al., Amendement 382 (Assemblée nationale, 15
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
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Morizet amendment which added to the bill an exception to copyright and to the sui generis
database right “to explore text and data for the needs of public research, excluding any
commercial use.”
46
In the Senate, the upper house of the French parliament, the exception was removed
from the bill. The committee on legal affairs argued it was not possible to create a new
exception and pinned its hopes on the contractual solution, which, it noted, could be the one
ultimately favoured by the European authorities.
47
The committee on culture proposed a half-
way solution between self-regulation and statutory changes to copyright. It did agree that it
was neither possible nor desirable, at this stage, to modify copyright law in the manner of the
lower house. However, it recommended the introduction of a statutory provision to help data
analysis in France. Following lengthy discussions, during which many senators voiced their
preference for the position of their colleagues in the lower house, the Senate eventually
adopted the amendment of Colette Mélot,
48
adding a provision to forbid, in contracts
between publishers and research institutions or libraries, any clause limiting access to
scientific publications owned by the publisher, for electronic data mining exclusively for the
purpose of public research and excluding any commercial use.”
49
The aim was to offer some
guarantees to researchers in their dealings with publishers of scientific articles, without
changing copyright law. Unsurprisingly, the Senate’s text was polarising. [*Page 31 in the
original] Publishers welcomed it and promised to improve promptly both contractual terms
and TDM tools for their customers.
50
The reaction from users was unanimously negative. An
open letter penned by digital entrepreneurs, public research centres and public figures
testified to the strength of support for a copyright exception.
51
Amongst the signatories were
many members of the Digital Council, including its former and current presidents, Benoît
Thieulin and Mounir Mahjoubi. This vocal opposition to the Senate proposal and support for
a copyright exception weighed in on the parliamentary debate, especially at the crucial stage
when the parliamentary joint committee (Commission mixte paritaire) was appointed to
reconcile the position of the lower house, in favour of a copyright exception, with that of the
Senate, in favour of a much narrower statutory provision focused on scientific publications.
Eventually, the joint committee adopted a compromise which enshrined the principle of an
exception, but an exception strictly confined to the context of research.
January 2016) [Tombé] ; Christian Paul et al., Amendement 616 (Assemblée nationale, 15 January 2016)
[Tombé].
46
Projet de loi pour une République numérique, adopté en 1ère lecture par l’Assemblée nationale le 26 janvier
2016, TA n° 663, article 18 bis (nouveau).
47
Colette Mélot, ‘Avis 525 (2015-2016) fait au nom de la commission de la culture, de l’éducation et de la
communication sur le projet de loi, adopté par l’Assemblée nationale après engagement de la procédure
accélérée, pour une République numérique par Mme Colette Mélot’ (Sénat, 5 April 2016), p. 47.
48
Colette Mélot, ‘Amendement n° COM-408 présenté en commission des lois du Sénat par Mme Colette MÉLOT
au nom de la commission de la culture du le 5 avril 2016’.
49
Texte n° 131 (2015-2016) Projet de loi pour une République numérique modifié par le Sénat le 3 mai 2016.
50
‘Communiqué - Fouille de textes et de données (FTD) / Text & data mining : la position des éditeurs
scientifiques du Syndicat National de l’Edition (SNE) et de la Fédération Nationale de la Presse d’Information
Spécialisée (FNPS)’ (SNE & FNPS, 15 June 2016), p. 2.
51
‘Data mining : la loi ne doit pas enterrer la recherche française’ Les Echos, 25 April 2016 ; See further critical
comments by Mounir Mahjoubi in Christopher Bys, “Exclusif : l’avis du président du CNNum sur le ‘text data
mining’ qui oppose chercheurs et éditeurs”, L’Usine Digitale (19 April 2016) and in the press release of the Digital
Council : ‘Le Conseil national du numérique dresse un bilan mitigé de l’examen au Sénat du projet de loi pour
une République numérique’ (Conseil National du Numérique, 3 May 2016).
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B. Two narrow exceptions whose implementation is suspended and long-term survival
in doubt
The 2016 Loi Republique Numerique modified the Intellectual Property Code by adding a
copyright exception for “the mining(in French ‘exploration’) of data and a sui generis right
exception for the “search” (in French fouille’) of data.
52
The TDM exception for copyright
authorises “The digital copies or reproductions [done] from a lawful source, for the mining of
texts and of those data included in or associated with scientific texts for the purpose of public
research, excluding any commercial activity.”
53
As we can see, the French exception is more
limited than its British equivalent,
54
mainly because it applies only to public research and only
to certain types of content. The French exception applies to “texts” and “those data included
in or associated with scientific texts”. Therefore, it does apply to all the types of texts,
including non-scientific ones. On this specific point, we can refer to the clarification made
during the debate in the joint committee,
55
when a proposed amendment to apply the
exception only to scientific texts had been rejected.
56
However, the exception applies only to
texts (or data included in scientific texts) and not to other works such as pictures, musical or
audio-visual works. Many members of parliament had wished to exclude as many types of
works as possible in order to protect associated cultural industries such as broadcasting and
the press.
57
The Intellectual Property Code then specifies that a decree [executive order] sets
out the requirements to implement text and data mining, as well as the procedures for storing
and communicating the files produced during the research activities …”.
58
The TDM exception
to the sui generis right of database producers is structured in a similar fashion and leaves it
to a decree to set much of its implementation procedures.
59
However, more than two years after the adoption of the law those decrees have yet
to be issued by the government. In May 2017, the government did submit a proposal of
decree for approval to the Conseil d’État, the highest administrative jurisdiction in France
which not only adjudicates cases but also advises the government on the preparation of legal
52
Loi n° 2016-1321 du 7 octobre 2016 pour une République numérique, article 38.
53
French Intellectual Property Code, article L. 122-5, 10° (Translation in English by the author. Original in French
: “Les copies ou reproductions numériques réalisées à partir d’une source licite, en vue de l’exploration de textes
et de données incluses ou associées aux écrits scientifiques pour les besoins de la recherche publique, à
l’exclusion de toute finalité commerciale »).
54
For a very good overview of the French TDM provisions as well as a comparative analysis with the UK and US
see: Lionel Maurel, ‘L’exception TDM dans la loi numérique: mérites, limites et perspectives’ S.I.Lex, 11
November 2016.
55
See the clarification from Luc Belot in the joint committee report: Rapport n° 743 (2015-2016) de MM.
Christophe-André FRASSA, sénateur et Luc BELOT, député, fait au nom de la commission mixte paritaire chargée
de proposer un texte sur les dispositions restant en discussion du projet de loi pour une République numérique,
déposé le 30 juin 2016 (numéro de dépôt à l’Assemblée Nationale : 3902)’, p. 16.
56
Id, p. 15.
57
Id, p. 16, see the comments by Emeric Bréhier and by Catherine Morin-Desailly.
58
French Intellectual Property Code, article L. 122-5, 10°; Translation in English by the author. Original in French
: “Un décret fixe les conditions dans lesquelles l'exploration des textes et des données est mise en œuvre, ainsi
que les modalités de conservation et de communication des fichiers produits au terme des activités de
recherche…».
59
French Intellectual Property Code, article L. 342-3, 5°.
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instruments such as statutes and decrees.
60
The Conseil d’État rejected the decree proposal.
61
Since its opinion has not been published, it is risky to speculate on the reasons for this
rejection. However, it would not be surprising if the Conseil d’État, like most other French
legal institutions before it, felt it was wiser to wait until the end of the legislative process at
EU level before assessing the French framework. Without decree, the French exception
remains largely inapplicable and unapplied. As we will explain, it also seems that the
exception being discussed at EU level will be broader than the French one in its current form.
Therefore, France needs to ready itself for a probable modification of the provisions of its
Intellectual Property Code to comply with the future directive.
In any case, the adoption by France of a TDM exception marks a turning point in the
European debate. It signals the end of the contractual option as a potential solution to the
issues raised by TDM. France had been very opposed to the idea of an exception, notably after
receiving sound legal advice that such an option was not available under current EU rules. The
government, as well as the culture committees in Parliament, did push for the contractual
solution until the end. However, Parliament was responsive to the arguments for an exception
put forward by researchers, librarians and innovators. The notion that French researchers
would be at a disadvantage compared not only with US researchers but also with those in the
UK, had a significant impact on the discussion. In the end, France enacted a TDM exception,
albeit a much narrower one than the UK. So, as the European Commission was about to unveil
its proposal for a new copyright directive, two major European countries had already adopted
a TDM exception even in the absence of an explicit provision in EU law. This lack of a specific
provision did not deter the UK which applied a broad interpretation of the existing EU
framework to enact a broad exception. Surprisingly, it did not deter France either, even
though its own analysis was that such an exception was not allowed under EU law.
[*Page 32 in the original]
IV. Policy options at European level and dialogue with member states
The publication of the directive proposal in September 2016, which is the outcome of a
process launched by the European Commission in 2013 with a public consultation on the
reform of copyright law, is an important milestone in the debate. It seems to ensure that the
principle of a TDM exception will be recognized at EU level and it opens the discussion in the
European institutions on the scope of such an exception (A). In parallel, more member states
have adopted their own exception whilst others experience great political changes, such as
Brexit, which could have an impact on the discussion on the TDM exception (B).
A. TDM exceptions in the directive proposal and the European institutional debate
In article 3 of the directive, the Commission proposes a mandatory exception 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
60
‘Projet de décret sur l’exploration de textes et de données pour les besoins de la recherche publique’, Sciences
communes, May 2017.
61
Pierre-Carl Langlais, ‘L’exception TDM sans décret d’application…’ Sciences Communes, May 2017 ; Michèle
Battisti and Joachim Schöpfel, ‘Quel paysage juridique pour l’exploration de données ?’ Paralipomènes, 27 July
2017.
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purposes of scientific research.
62
Regarding the recognition of such an exception and on the
question as to whether European law already authorises TDM, the Commission offers a
diplomatic answer. Although it considers that Union law already provides certain exceptions
that may apply” to TDM, it acknowledges that they are optional and not fully adapted” to
TDM.
63
It thus seems that a specific exception is desirable to secure TDM practices at EU level.
It is worth noting that this exception is mandatory, the Commission wishing to avoid the
harmonisation issues due to the optional nature of the exceptions in the 2001 directive.
The exception only benefits research organisations which act in the public interest
such as universities or research institutes.
64
However, it applies to any type of research
activity, including commercial research, the proposal specifying that research organisations
should also benefit from the exception when they engage into public-private partnerships.
65
Thus, the Commission chooses the applicability without distinction advocated by the Expert
Group chaired by Professor Hargreaves.
66
The exception applies to all types of works and it
cannot be excluded by contract.
67
The interests of the rightsholders are guaranteed by the
requirement of lawful access to the content, which particularly aims to secure the relevant
revenue streams such as academic journal subscriptions. As a consequence, the proposal
specifies that there is no need to provide for compensation for rightholdersbecause in
view of the nature and scope of the exception the harm should be minimal”.
68
Rightsholders
are entitled to apply proportionate measures to ensure the security and integrity of their
networks and databases.
69
Lastly, this exception is meant to apply to three rights:
70
two that
are very familiar, copyright and the right of database producers, but also a new right, the
ancillary right for press publishers, which the Commission has included in its proposal, in
article 11, and which is very controversial.
The discussions about the directive are ongoing in the relevant European institutions
where the debate focuses on whether to extend it to more beneficiaries. In the European
Parliament, the MEP Therese Comodini Cachia handed a draft report to the Committee on
Legal Affairs (JURI) in which she proposed to extend the benefit of the exception to everybody
and not just to research institutions and also to extend it to all uses and not just for scientific
research.
71
We are reminded that the MEP Julia Reda had already argued, in her 2015 draft
report, for a broad TDM exception open to everyone, but that this proposal had been
softened during the discussions in the legal affairs committee; the resolution eventually
62
COM(2016) 593 final, supra note 1, article 3(1).
63
Id, recital 9.
64
Id, recital 11.
65
Id, recital 10 ; see also European Commission, ‘Impact Assessment on the Modernisation of EU Copyright
Rules, Accompanying the Document “Proposal for a Directive of the European Parliament and of the Council on
Copyright in the Digital Single Market” {COM(2016) 593} - SWD(2016) 301 Final (Part 1/3)’ (14 September 2016),
p. 116-19, where the impact assessment highlights as the favoured option for TDM “Option 3 - Mandatory
exception applicable to public interest research organisations covering text and data mining for the purposes of
both non-commercial and commercial scientific research”.
66
Expert Group Report, supra note 4, p. 7.
67
COM(2016) 593 final, supra note 1, article 3(2).
68
Id, recital 13.
69
Id, article 3(3).
70
Id, article 3(1).
71
Therese Comodini Cachia, ‘Draft Report on the Proposal for a Directive of the European Parliament and of the
Council on Copyright in the Digital Single Market (COM(2016)0593C8-0383/2016–2016/0280(COD))’
(Committee on Legal Affairs - European Parliament, 10 March 2017), p. 27, amendment 32.
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adopted by the Parliament would only provide for the need to assess the enablement of
TDM.
72
It will be interesting to see if the Parliament will, this time, be more welcoming to a
broad exception like the one proposed in the Comodini report. In the Council of the European
Union, the Estonian presidency submits, in September 2017, a compromise proposal on the
TDM exception.
73
It contains some amendments, which although more limited than those
discussed in Parliament, still indicates a willingness to extend the benefit of the exception, by
opening it up to cultural heritage institutions.
74
The debate in the European institutions is
likely to continue at least throughout 2018.
[*Page 33 in the original]
B. Developments in some Member states
Since the publication of the directive proposal, Ireland, Estonia and Germany have changed
their copyright laws or have proposed to do so, thus weighing in on the TDM debate (1). For
France (2) and the UK (3) significant political changes could influence the future of TDM.
1. Ireland, Estonia, Germany
In Ireland, the 2013 report by the Copyright Review Committee recommends the creation of
a TDM exception for research.
75
In summer 2016, the government had prepared a bill to
reform copyright accordingly,
76
but it was not submitted for discussion, seemingly because of
the debate started at EU level by the Commission’s directive proposal.
In Estonia, a TDM exception came into force in January 2017.
77
According to the
English translation of the exception enshrined in a new article § 19(3)(1), it applies to
“processing of an object of rights for the purposes of text and data mining and provided that
such use does not have a commercial objective”. This TDM exception seems very broad, being
arguably applicable to all the uses listed under the header of § 19, namely ‘Free use of works
for scientific, educational, informational and judicial purposes’. Like all the exceptions listed
72
Compare Julia Reda, ‘Draft Report on the Implementation of Directive 2001/29/EC of the European Parliament
and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in
the Information Society (2014/2256(INI))’ (Committee on Legal Affairs - European Parliament, 15 January 2015),
point 18: “Stresses the need to enable automated analytical techniques for text and data (e.g. 'text and data
mining') for all purposes, provided that the permission to read the work has been acquired” and ‘European
Parliament Resolution of 9 July 2015 on the Implementation of Directive 2001/29/EC of the European Parliament
and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in
the Information Society (2014/2256(INI)) - P8_TA(2015)0 273’, point 48: “Stresses the need to properly assess
the enablement of automated analytical techniques for text and data (e.g. ‘text and data mining’ or ‘content
mining’) for research purposes, provided that permission to read the work has been acquired”.
73
Estonian Presidency, ‘Revised Presidency Compromise Proposal Regarding Articles 2 to 9 of the Directive on
Copyright in the Digital Single Market’ (12533/17, Council of the European Union, 26 September 2017).
74
Idem, article 3.
75
Irish Copyright Review Committee [Eoin O’Dell, Patricia McGovern and Stephen Hedley], ‘Modernising
Copyright’ (Department of Jobs, Enterprise and Innovation, October 2013), pages 85-88 and p. 157.
76
Irish Government, ‘General Scheme of a Copyright Bill Approved by Government’ (Department of Business,
Enterprise and Innovation, 4 August 2016).
77
‘Estonian Copyright Act (Consolidated Text of January 1, 2017)’, WIPO Lex, article 19(3)(1). For a description
of the early stages of the legislative history of the Estonian exception and the influence of the British experience
see: Liis Lindström, Automated Processing of Copyrighted Works in the European Union - a Way Forward?
(University of Tartu - Faculty of Law, 2014), p. 13.
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in § 19, the TDM exception “is permitted without the authorisation of the author and without
payment of remuneration if mention is made of the name of the author of the work, if it
appears thereon, the name of the work and the source publication.”
Lastly, the German copyright law was modified in 2017 to include a TDM exception.
78
It applies only to non-commercial scientific research, and only to a specifically limited circle
of persons for their joint scientific research, as well as to individual third persons for the
purpose of monitoring the quality of scientific research”.
79
It applies to all types of works. The
law provides that “once the research work has been completed, the corpus and the
reproductions of the source material shall be deleted; however it is possible to transmit the
corpus and the reproductions of the source material to designated institutions for long-term
storage.
80
2. France: new government, new policy?
As we have seen, during the parliamentary debates in France, the position of the government
was initially hostile to the idea of an exception. This hostility was echoed at European level.
In its 2014 response to the public consultation, the French government questioned the need
for an EU-wide exception and argued that such an exception should be optional, strictly
limited to non-commercial scientific research, and on a purely voluntary basis.
81
This stance
of the French government against an exception was challenged by the French parliament
which enacted an exception, albeit a limited one. The French parliament has had the
opportunity to comment on the directive proposal via its committees on European affairs.
Those committees did welcome what they saw as a limited exception but argued that the
limited nature of the exception in the proposal should be guaranteed and even increased for
fear the TDM exception would become “a complete exception to the reproduction right”.
82
In its opinion sent to the European Parliament about the proposal, the French Senate
committee even proposed “to limit this exception to only the texts and data with a research
purpose and exclude commercial uses”.
83
It also asked the French government to pursue this
more restrictive policy in its negotiations at EU level.
84
It will be interesting to see whether
the change of government and the revamping of parliament following the presidential and
legislative elections of the summer of 2017 will influence French policy not only in the
negotiations at EU level but also in the future debates on the implementation of the directive.
It is notable that Mounir Mahjoubi, who had been a strong and effective advocate for the
78
Act on Copyright and Related Rights (Urheberrechtsgesetz, UrhG) as last amended by Article 1 of the Act of 1
September 2017 (Federal Law Gazette I p. 3346), The Federal Ministry of Justice and Consumer Protection,
translation by Ute Reusch, section 60d.
79
Id, section 60d (1).
80
Id, section 60d (3). Section 60d (3) identifies those institutions designated for archival purposes as those
referred to in sections 60e, ie libraries, and 60f, ie archives, museums and educational establishments.
81
‘Rapport Karamanli' n° 3366, supra note 42, p. 42.
82
Marietta Karamanli and Hervé Gaymard, ‘Rapport d’information n° 4136 déposé par la commission des affaires
européennes sur les propositions législatives relatives à la protection du droit d’auteur dans le Marché Unique
du Numérique et présenté par Mme Marietta Karamanli et M. Hervé Gaymard’ (Assemblée nationale, 18
October 2016), pages 11-12 [translated in English by the author].
83
Colette Mélot and Richard Yung, ‘Projet d’avis politique sur le paquet “droit d’auteur” transmis au Parlement
européen’ (Commission des affaires européennes du Sénat, 19 January 2017), paragraph 20 [translated in
English by the author].
84
Id, paragraph 24.
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
numbers which are highlighted with the mention [*Page __ in the original]
TDM exception whilst president of the Digital Council (CNNum) and resigned from his position
to join the campaign of Emmanuel Macron, was appointed Secretary of State for Digital
Affairs. We shall see whether this new French executive will adopt a more pro-TDM stance.
3. Brexit and the scenario of the Americanisation of UK exceptions
The influence of the United Kingdom has been key on the topic of data mining. The works of
Professor Hargreaves and their implementation by the government and parliament have set
important milestones in the debate within member states and at European level. The UKs
ambition was not only to change its national law but also the framework at EU level to
authorise a broad exception, especially by making it applicable to commercial research.
[*Page 34 in the original] The European Commission seems to have moved in that direction.
But the UK exception remains broader in terms of its beneficiaries. As we have explained, one
of the key discussion points at EU level is whether the benefit of the exception should be
extended beyond research institutions, thus adopting a British approach. However, since the
vote on Brexit, the UK is losing influence within the institutional EU framework, so it might
not be able to pursue this agenda on the TDM front. And the discussions between the
government and the European institutions are focused on much more pressing matters than
copyright law. Nevertheless, it is likely that the UK will still be influential on the question of
TDM. Paradoxically, the further away the UK will be from the EU, the more influence it could
have on the exceptions. Indeed, if the UK were to leave the EU but stay in the single market,
then it would eventually need to comply with the provisions of the future directive. If,
however, the UK were to leave the single market it would regain a lot of autonomy in shaping
its copyright law. It then could, like Japan, adopt a very broad TDM exception for commercial
research. It could also decide to remove the requirement of non-commerciality from its
research-related exception, thus reverting to the situation before the implementation of the
2001 directive. Lastly, as some commentators have pointed out, in the scenario of a hard
Brexit, the UK could adopt a US-style fair use system.
85
Therefore, when drafting the EU TDM
exception, European institutions must consider the scenario in which a post-Brexit Britain
would adopt a very broad TDM exception and even become an outpost of fair use in Europe.
The EU needs to future-proof its exception to counter a potential competitive advantage for
research and innovation from the UK.
V. Arguments in favour of the broadest possible TDM exception
The directive proposal already contains many good points on TDM. It recognises the principle
of a mandatory exception, opens it to all research uses, including commercial ones, and
applies it to all types of works. In doing so, the proposal already lifts many of the restrictions
imposed in some member states. But the EU should extend the benefit of the exception
beyond research to open it to all uses or, at the very least, extend the benefit of the exception
beyond research institutions.
The concerns of rightholders need to be acknowledged. However, they can also be put
in perspective and balanced against the potential gains for rightholders currently being
85
Richard Arnold, Lionel Bently, Estelle Derclaye and Graeme Dinwoodie, ‘IP Law Post-Brexit’ (2017) 101(2)
Judicature 65, p. 69.
Propriétés Intellectuelles, no. 67 (April 2018), pages 25-35 - Please quote the original page
numbers which are highlighted with the mention [*Page __ in the original]
discussed in the rest of the proposal. European law already guarantees the interests of
rightholders, notably in the digital context. In Europe, rightholders can combat the
reproduction and the dissemination of their works through civil and criminal lawsuits,
engaging the liability of content platforms, asking for the blocking of streaming websites or
even, in some countries, triggering graduated response procedures. In pursuing the legitimate
goal of increasing the protection of rightholders, the EU has been innovative notably by
creating the sui generis right for database producers or by affording legal protection to DRMs.
It proposes to further innovate in this new directive by introducing an ancillary right for press
publishers (article 11) or by reinforcing the prerogatives of rightholders against content
sharing platforms (article 13 known as the ‘value gap’ proposal). These two proposals
question the existing balances reached between the various players in the culture and
technology industries. In contrast, a TDM exception, even a very broad one, would not put in
jeopardy the architecture of the copyright law, or the legal arsenal at the disposal of
rightholders. By requiring lawful access to the source it secures the payment of the
rightholders. By only targeting the reproduction right, it does not affect the communication
right, and thus not the possibility to pursue those who disseminate the works without
authorisation. For instance, rightholders will still be able to litigate against Sci-hub, the illegal
sharing platform for scientific publications, as they have done in the US.
86
By adopting a TDM exception as broad as possible, the EU would enable European
researchers and business to compete with their US counterparts in this promising area of
innovation. As we have seen, particularly in the case of the advent of the French exception,
this demand from users is very strong and hard to ignore for national lawmakers. Many
commentators and advocacy groups have asked for a broad exception at EU level.
87
The EU
must consider the decisions already made by some member states on the topic, but it can
also choose to go further than national lawmakers. As such, there is no tradition of TDM
exceptions in any member state. [*Page 35 in the original] And the legal analysis upon which
member states did think they had the right to create a new exception, can be questioned. At
most, there are some recent exceptions that member states attached to a then narrow EU
framework. The EU can go beyond those constraints and redefine the framework of its own
exception.
Lastly, by enacting a broad exception, capable of competing with the benefits of
American fair-use, the EU will also further legitimise the European method of elaboration of
exceptions. It will show the reactivity of its legislative, rather than judicial, approach to
creating new exceptions. For all those reasons, the EU should seize this opportunity to update
its copyright law by adopting a TDM exception applicable to the widest number of
beneficiaries and uses.
86
David Kravtes, ‘Scientific Research Piracy Site Hit with $15 Million Fine’ Ars Technica, 23 June 2017.
87
See notably: Thomas Margoni and Giulia Dore, ‘Why We Need a Text and Data Mining Exception (But It Is Not
Enough)’ [2016] Zenodo; Christian Geib, ‘From Infringement to Exception: Why the Rules on Data Mining in
Europe Need to Change’ [2016] CREATe Working Paper 2016/07; Rosati, Eleonora, ‘An EU Text and Data Mining
Exception: Will It Deliver What the Digital Single Market Strategy Promised?’ The IPKat, 22 May 2017; Christophe
Geiger, Giancarlo Frosio and Oleksandr Bulayenko, ‘Opinion of the CEIPI on the European Commission’s Proposal
to Reform Copyright Limitations and Exceptions in the European Union’ (Research Paper 2017-09, CEIPI (Centre
for International Intellectual Property Studies), September 2017); European Alliance for Research Excellence,
‘Open Letter : Securing Europe’s Leadership in the Data Economy by Revising the Text and Data Mining (TDM)
Exception’, 26 September 2017.
Bibliography
[The Bibliography was added to the English version of the article]
a) Legal instruments, including legislative documents - ordered by jurisdiction
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546.580+02+DOC+PDF+V0//EN.
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Estonia
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France
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https://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006069414.
Discussion sur le projet de directive
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commission des affaires européennes sur les propositions législatives relatives à la
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Loi République numérique 2016
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Belot, Luc, and Christophe-André Frassa. ‘Rapport n° 743 (2015-2016) de MM. Christophe-André
FRASSA, sénateur et Luc BELOT, député, fait au nom de la commission mixte paritaire
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Conseil National du Numérique. ‘Le Conseil national du numérique dresse un bilan mitigé de
l’examen au Sénat du projet de loi pour une République numérique’, 3 May 2016.
https://cnnumerique.fr/wp-
content/uploads/2016/05/Se%CC%81nat_Communique%CC%81-de-presse-PJL-
nume%CC%81rique.pdf.
Texte n° 131 (2015-2016) Projet de loi pour une République numérique modifié par le Sénat le 3
mai 2016. https://www.senat.fr/leg/tas15-131.html.
Mélot, Colette. ‘Avis n° 525 (2015-2016) fait au nom de la commission de la culture, de
l’éducation et de la communication sur le projet de loi, adopté par l’Assemblée nationale
après engagement de la procédure accélérée, pour une République numérique par Mme
Colette Mélot’. Sénat, 5 April 2016. http://www.senat.fr/rap/a15-525/a15-525.html.
Mélot, Colette. ‘Amendement n° COM-408 présenté en commission des lois du Sénat par Mme
Colette MÉLOT au nom de la commission de la culture le 5 avril 2016’. Sénat, 5 April 2016.
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Projet de loi pour une République numérique, adopté en 1ère lecture par l’Assemblée nationale
le 26 janvier 2016, TA n° 663. http://www.assemblee-nationale.fr/14/pdf/ta/ta0663.pdf.
Paul, Christian, Régis Juanico, Audrey Linkenheld, Gérard Sebaoun, Martine Martinel, Christophe
Premat, Colette Capdevielle, et al. ‘Amendement n° 616 [Tombé]’. Assemblée nationale, 16
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Attard, Isabelle, Sergio Coronado, Laurence Abeille, Éric Alauzet, Brigitte Allain, Danielle Auroi,
Denis Baupin, et al. ‘Amendement n° 89 [Tombé]’. Assemblée nationale, 15 January 2016.
http://www.assemblee-nationale.fr/14/amendements/3399/AN/89.asp.
Chassaigne, André, François Asensi, Alain Bocquet, Marie-George Buffet, Jean-Jacques Candelier,
Patrice Carvalho, Gaby Charroux, Marc Dolez, Jacqueline Fraysse, and Nicolas Sansu.
‘Amendement n° 382 [Tombé]’. Assemblée nationale, 15 January 2016.
http://www.assemblee-nationale.fr/14/amendements/3399/AN/382.asp.
Kosciusko-Morizet, Nathalie, Patrice Martin-Lalande, Virginie Duby-Muller, Dino Cinieri, Jean-
Marie Sermier, Sophie Rohfritsch, Éric Straumann, et al. ‘Amendement n° 180 [Adopté]’.
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nationale.fr/14/amendements/3399/AN/180.asp.
Belot, Luc. ‘Rapport n° 3399 fait au nom de la commission des lois sur le projet de loi (n° 3318)
pour une République numérique, fait par M. Luc Belot’. Assemblée nationale, 15 January
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Bréhier, Emeric. ‘Avis n° 3389 présenté au nom de la commission des affaires culturelles et de
l’éducation sur le projet de loi pour une République numérique’. Assemblée nationale, 13
January 2016. http://www.assemblee-nationale.fr/14/rapports/r3389.asp.
Karamanli, Marietta. ‘Rapport d’information n° 3366 déposé par la commission des affaires
européennes, portant observations sur le projet de loi pour une République numérique (n°
3318), et présenté par Mme Marietta Karamanli.’ Assemblée nationale, 16 December 2015.
http://www.assemblee-nationale.fr/14/europe/rap-info/i3366.asp.
Projet de loi pour une République numérique, n° 3318, déposé le 9 décembre 2015.
http://www.assemblee-nationale.fr/14/projets/pl3318.asp
Conseil National du Numérique. ‘Avis n°2015-3 du Conseil national du numérique relatif au projet
de loi pour une République numérique’. CNNum, 30 November 2015.
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INRA (DIST Odile Hologne). ‘Proposition d’amendement : exception de fouille de textes et de
données’. www.republique-numerique.fr, 13 October 2015. https://www.republique-
numerique.fr/projects/projet-de-loi-
numerique/consultation/consultation/opinions/section-2-travaux-de-recherche-et-de-
statistique/exception-de-fouille-de-texte-et-de-donnees/versions/exception-pour-la-fouille-
de-texte-et-donnees-a-des-fins-de-recherche-scientifique.
Consortium COUPERIN. ‘Proposition : Exception de fouille de textes et de données’.
www.republique-numerique.fr, 2 October 2015. https://www.republique-
numerique.fr/consultations/projet-de-loi-
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statistique/exception-de-fouille-de-texte-et-de-donnees.
CNRS - DIST - Renaud FABRE. ‘Une durée d’embargo plus courte, ne pas entraver le TDM (fouille
de texte et de données) et ne pas interdire une exploitation commerciale’. www.republique-
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de-loi-numerique/consultation/consultation/opinions/section-2-travaux-de-recherche-et-
de-statistique/article-9-acces-aux-travaux-de-la-recherche-financee-par-des-fonds-
publics/versions/une-duree-d-embargo-plus-courte-ne-pas-entraver-le-tdm-fouille-de-
texte-et-de-donnees-et-ne-pas-interdire-une-exploitation-commerciale.
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Germany
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Ireland
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Japan
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http://www.cric.or.jp/english/clj/doc/20161018_October,2016_Copyright_Law_of_Japan.p
df, Article 47-7.
United Kingdom
Copyright, Designs and Patents Act 1988
Copyright, Designs and Patents Act 1988 (c. 48).
http://www.opsi.gov.uk/acts/acts1988/UKpga_19880048_en_1.htm, section 29A
2014 Copyright Regulations on Research, Education, Libraries and Archives - 2014
The Copyright and Rights in Performances (Research, Education, Libraries and Archives)
Regulations (SI 2014/1372). http://www.legislation.gov.uk/uksi/2014/1372/contents/made.
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(BIS0312) (Final Impact Assessement - Part 3)’, 13 December 2012.
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Collectif d’entrepreneurs et de dirigeants du numérique. ‘Data mining : la loi ne doit pas enterrer
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European Alliance for Research Excellence. ‘Open Letter : Securing Europe’s Leadership in the
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mining-tdm-exception/.
Geib, Christian. ‘From Infringement to Exception: Why the Rules on Data Mining in Europe Need
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data-mining-in-europe-need-to-change/.
Geiger, Christophe, Giancarlo Frosio, and Oleksandr Bulayenko. ‘Opinion of the CEIPI on the
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Not Enough)’. Zenodo, 1 April 2016. https://zenodo.org/record/248048.
Maurel, Lionel. ‘L’exception TDM dans la loi numérique: mérites, limites et perspectives’. S.I.Lex,
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The Texas construction market is the second-largest hub inside the U.S. Nearly 750 thousand people are working in different sectors of the Texas construction industry. Although the big picture indicates steady growth in Texas hiring size in the last 30 years, the Texas construction market's volatility has been an issue for construction companies and their hiring plans. Rather than seasonal patterns inherent to construction activities, factors such as economic recessions and crises, tropical hurricanes, and outbreaks of pandemics are potential reasons for fluctuations in construction companies' demand to hire. The impact of each factor on the cities varies due to geographical and demographical diversity inside Texas. This paper focuses on understanding workforce migration behaviors following local disasters because it relies heavily on the local workforce. To determine each factor's significance is to find if they created an anomaly in the dataset after they occurred. This research implemented an outlier detection analysis on Texas cities and compared the resulting outlier dates with the timeline of Texas's extreme events in the last 30 years. The results show that economic crises with national scales such as the dot-com bubble at the start of the century and the 2008 economic crisis mostly affected four major cities (Austin, Houston, Dallas/Fort Worth, and San Antonio) of Texas. Multi-state local disasters such as hurricane Harvey impacted both major cities and their satellite cities, suggesting the migration of the workforce to the disaster-areas. The research found that low population cities have been affected by local disasters.
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This chapter discusses the liberal economic approach to problems of copyright law espoused by Alan Peacock, in particular in relation to performing rights in music. His contribution showed a man of independent mind, not at all afraid to disagree with the established wisdom or to draw conclusions that surprised those for and with whom he worked. In the spirit of an argument amongst friends, the chapter analyses the extent to which Peacock’s view of the economics of copyright resembled or differed from those who had gone before, including David Hume and Arnold Plant. It is suggested that the approach was another example of Peacock’s rejection of William Baumol’s analysis of the economics of the performing arts as always bound to require public subsidy. Peacock showed that composers and their publishers adjusted their positions to the demands of the market and also generated significant revenue for themselves in meeting consumer demand, in particular through collective action by way of membership organisations such as the Performing Right Society. In the 1970s he also advocated the imposition of a levy on blank media enabling private copying of content, an issue which has recently returned to the fore in debates about further copyright reform to meet the digital challenge. The chapter concludes with some comments on Peacock’s reluctance to extend his economic analysis to more general questions about copyright law and policy.
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Data or text mining (hereafter called “content mining”) is a process that uses software that looks for interesting or important patterns in data that might otherwise not be observed. An example might be combining a database of journal articles about ground water pollution with one of hospital admissions to detect a pollution-related pattern of disease breakout.It is also a useful tool in commerce. A credit card company might detect a correlation between purchases of tickets from particular airline with purchases of certain types of automobiles and develop a marketing program uniting appropriate vendors. One McKinsey report states that the utilization of ‘big data’ in the sphere of public data alone could create €250 billion annual value to Europe’s economy.Content mining is increasingly accomplished by machine. Databases, particularly those produced by scientific research, are far too large to be scanned by human eyeball. However, the right to mine data is not assured by the law in most jurisdictions and even where it is, the terms of access to the majority of research publication databases deny permission to do so. One recent study indicated that obtaining permission to mine the thousands of articles appearing on a single subject from the myriad of different publishers would require 62% of a researcher’s time. Many content owners, including research institutions, have yet to develop any policy on content mining.This report will identify the main legal barriers to data mining and data reuse and make policy suggestions to guide governments, funding agencies, and research institutions. As the title suggests, the emphasis of the study is about legal issues that are specific to higher education institutions (HEIs).The first challenge for this report is to attempt to delimit the subject matter, as various types of content that are subject to automated analysis. HEIs can hold and share content of various formats, here are just a few examples:Text: published articles, book chapters, preparatory notes, working papers, reports, teaching materials, conference papers, presentations, theses.Datasets: statistical data, geolocation data, survey results, maps, figures, time series, genetic information, health records, computer logs.Multimedia: pictures, sound recordings, interviews, presentations, video.Each of the above may have separate legal regimes applying to them. In the interest of convenience and simplicity, whenever the report talks about database contents, there will be no distinction as to whether we are dealing with text, data or multimedia, unless clearly specified in the text.
Working Paper
As societies gather increasing amounts of data, interest is growing in technology that allows people to explore and analyse it. The process used, known as data mining, offers many potential benefits. In the pharmaceutical field, for example, it can help medical researchers to discover correlations between illnesses and treatments, as well as improve diagnostics, aid understanding of multifactorial diseases, and repurpose existing drugs. Law enforcement agencies can use data mining to spot patterns in the times and dates that crimes are committed, helping them to allocate resources more effectively and prevent crimes from being committed in first place. But questions remain about the legal framework that governs the use of data mining. In particular, do UK and EU copyright rules and the sui generis database right law impede the use of DM? These questions are important, because evidence suggests that when it comes to data mining, Europe is lagging behind the US and a number of Asian countries. One reason for this is that copyright protection in EU and European Economic Area countries is relatively strong, which has a negative net effect on the use of data mining. This paper considers how the relationship between UK and EU copyright and database law and data mining affects three important industries: the pharmaceutical sector, law enforcement and marketing. It concludes that data mining is prima facie infringing. The legal exception and defences currently available are at best insufficient and at worst not applicable to data mining. Such legal uncertainty is likely to have a chilling effect on data mining in Europe. The paper concludes by considering potential legislative and regulatory solutions to ensure that data miners in Europe are able to achieve the potential benefits that data mining offers. One potential solution is for copyright owners to grant researchers licences to mine their data. In addition to the cost and scalability challenges of obtaining licences, however, there is a risk that a licensing-based solution could be used to erode copyright rules and exceptions. Another potential solution would be to introduce a wide, US-style fair use exception to copyright law. This has the advantage of being able to deal with emerging technological developments and is thus relatively “future-proof”. However, many European legal scholars and lawmakers are likely to resist a wholesale import of US-style fair use provisions. Policy makers may be more amenable to a compromise approach, similar to that proposed by the Irish Copyright Review Committee, which recommended combining UK-style fair dealing and closed exceptions with fair use. Given that Europe is falling behind in the crucial technology of data mining, it is in Europe’s competitive interest for policy makers to err on the side of openness, even if fair use provisions seems out of reach. A closed, mandatory, data mining-specific exception rather than a technology-neutral, future-proof solution seems to be the most likely outcome of the latest round of EU copyright reform. Whatever the Commission proposes, it is crucial that policy makers are pushed as far as possible in the direction of openness and legal certainty to maximise the gains for data mining in Europe.
nom de la commission de la culture, de l'éducation et de la communication sur le projet de loi, adopté par l'Assemblée nationale après engagement de la procédure accélérée, pour une République numérique par Mme Colette Mélot
  • Colette Mélot
Colette Mélot, 'Avis n° 525 (2015-2016) fait au nom de la commission de la culture, de l'éducation et de la communication sur le projet de loi, adopté par l'Assemblée nationale après engagement de la procédure accélérée, pour une République numérique par Mme Colette Mélot' (Sénat, 5 April 2016), p. 47.
Amendement n° COM-408 présenté en commission des lois du Sénat par Mme Colette MÉLOT au nom de la commission de la culture du le 5 avril
  • Colette Mélot
Colette Mélot, 'Amendement n° COM-408 présenté en commission des lois du Sénat par Mme Colette MÉLOT au nom de la commission de la culture du le 5 avril 2016'.
Communiqué -Fouille de textes et de données (FTD) / Text & data mining : la position des éditeurs scientifiques du Syndicat National de l'Edition (SNE) et de la Fédération Nationale de la Presse d'Information Spécialisée (FNPS)'. SNE & FNPS, 15
  • Fnps Sne
SNE, and FNPS. 'Communiqué -Fouille de textes et de données (FTD) / Text & data mining : la position des éditeurs scientifiques du Syndicat National de l'Edition (SNE) et de la Fédération Nationale de la Presse d'Information Spécialisée (FNPS)'. SNE & FNPS, 15 June 2016. https://www.sne.fr/app/uploads/2016/06/SNE_FNPS_CP_ProjetdeLoiLemaire_TDM_Juin20 16.pdf.