The wandering saga of the text and data mining exception in the EU copyright reform - International Communia Association

"In September 2016 the European Commission released its copyright reform directive. For the most part it lacked a progressive vision, adequate protections for the public interest, and workable solutions to promote the European digital single market. This characterization is equally applicable to how the Commission handled text and data mining. In our response to the directive, we noted that it’s good that the Commission recognized that researchers encounter legal uncertainty about whether—and how—they may engage in text and data mining, and are concerned that publishers’ contractual agreements may exclude TDM activities. So, in this respect it’s positive that the Commission introduced a mandatory exception to copyright for text and data mining that would forbid contractual restrictions or terms of service from interfering with the right to exercise the exception.

At the same time, we identified major problems with the Commission’s proposal. First, there was the limitation on the beneficiaries. The proposed exception would be available only to research organisations that operate on a not-for-profit basis or pursuant to a public interest mission as recognised by a Member State. The practical effect of this limitation means that the private sector will be excluded from the benefits of the exception. This is not aligned with the goals of the reform to promote activity in the digital single market. Second, the Commission limited the purposes for which the TDM exception would apply. Their original proposal limited the scope of the TDM activity to 'purposes of scientific research.' We noted that this constraint would decrease the potential impact of novel TDM uses, such as for journalism-related investigations, market research, or other types of activities not strictly considered 'scientific research.'

We recommended that the Directive should be amended to ensure that they achieve the goal of facilitating research and innovation across all parts of society by permitting anyone to engage in text and data mining. This means removing the limitation on research organisations as the sole beneficiaries of the proposed exception. We also urged that the exception should allow text and data mining for any purpose. This means removing the limitation on scientific research as the only purpose allowed for under the proposed exception."