Copyright issues in Text and Data Mining OAI9 Jonas Holm Legal counsel, Stockholm University

The (amended) Reda Report adopted by EP JURI committee

What do we mean by copyright protection?  Economic Rights: the exclusive right to..  Produce copies and reproductions  Import or export the work  Create derivative works  Perform/display the work publicly  Display/transmit by TV and radio  Sell, license or transfer these right to others  Moral rights: included in civil law and some common law jurisdictions  Right of attribution  Right to the integrity of the work  Sui generis right:  Database protection

The Berne Convention  Require its signatories to recognize the copyright in works of authors from other signatory states  States minimum protection terms  Includes moral rights  Fair use  Three-step-test: 1) Signatory countries can permit exceptions for reproduction 2) Provided such reproduction don’t interfere with the normal exploitation 3) And does not unreasonably prejudice the legitimate interests of the authors

How does this apply to Text and Data Mining (content mining, DM, TDM)?  Most legal scholars agree that legal consent from right holders is required for TDM-like activities on input works currently protected by copyright  TDM activity is considered a disposition within the zone of exclusivity for the legal right holder in a work  Mining would then require licensing clearance procedures for each scientific projects  Such licensing negotiations could be burdensome and costly

The EU Legal Framework on Copyright  Satellite and cable directive 1993  Database directive 1996  Infosoc directive 2001  Directive on the resale right 2001  Directive on the enforcement of intellectual property rights 2004  Directive on rental and lending rights 2006 (modified)  Directive on the legal protection of computer programs 2009 (modified)  Directive on term of protection 2011  MoU on Out-of-commerce works 2011  Orphan works directive 2012  Directive on collective management of copyright 2014

Infosoc directive 2001 (aka Copyright directive)  Definitions of the exclusive rights granted under copyright  Contains a number of exceptions to copyright and related rights:  Reproduction for private use  Reproduction by libraries (non-commercial)  Illustration for teaching and scientific research  Use for criticism and review  Use for non-commercial research  However, these exceptions are not mandatory, and the implementation varies greatly amongst member states

Database directive 1996  In addition to the copyright protection offered by the national copyright regimes, the EU Database Directive contains legal protection for databases  … that are considered to be the result of a significant investment  Database creators will receive a protection similar to copyright  This is called a sui generis right  Such protection is a barrier to Text and Data Mining (TDM)  The database protection is specific to the EU and is a competitive disadvantage for EU researchers

National copyright exceptions rules for TDM  Exception rules in national copyright regimes facilitates legal certainty around TDM activity  Such exception rules rests on the assumption that lawful right to read a work also implies a lawful right to mine  With such exception rules, no separate permission for TDM activity needs to be obtained.  National exception rules for TDM exists in, among others, Japan, Israel, South Korea and the United Kingdom  However, the UK exception rule is for non-commercial TDM activity only

Fair use and fair dealing  Countries within the anglo-american copyright system has fair use or fair dealing provisions in their copyright regimes that allows for certain activity in works, without consent.  Fair dealing (Commonwealth countries) is list of specific actions allowed (TDM activity not included).  Fair use (United States) has an open ended list with activities “such as..” – This allows for TDM!  The Fair dealing provision in Canada is more open ended and similar to U.S. Fair dealing

How does legal uncertainty affect TDM research?  Studies has shown that research publications with TDM elements are significantly fewer in countries without legal certainty around TDM than in countries with an exception rule or fair use  Apparently, this makes for a competitive advantage for the American science community compared to the European counterpart  Similar studies has also shown that research publications with TDM elements in Europe has declined since the issue of legal certainty was raised

Current debate – Market licensing solution?  In may, the academic publishing community through STM (The International Association of Scientific, Technical and Medical Publishers) issued a statement that legal certainty around TDM activity in Europe already exists  The STM statement offers a solution through a market licensing mechanism where permission for TDM activity can be obtained through licensing negotiations and TDM infrastructure.  The academic community has already issued statements objecting to this solution as insufficient.

So, what’s currently in the Reda Report?  Calls on the EU to “Examine the possibilities of reviewing a number of existing exceptions and limitations”  Suggests minimum standards for the exceptions and limitations  “need to properly assess the enablement of automated analytical techniques for text and data”

Current EU Copyright reform work - The Digital Single Market  Digital Single Market Strategy – May 2014  Impact assessment in June 2015  Proposal expected in October?

Likely outcome of the Digital Single Market?  of the Exception rules in the Infosoc directive to be made mandatory  Exception rule for TDM – unclear if for commercial and non-commercial use?  Not yet specified actions to facilitate cross-border access to works protected by copyright

Solutions  Copyright exceptions (Infosoc directive, new directive?)  (Licensing)  Re-definition of the reproduction right (would require a legal instrument)  Open Norm - Fair Use? Fair Dealing? - The Lisbon Treaty, Article 118, opens for a Single European Copyright Title (similar to patents)

LIBER’s work on Copyright Advocacy  Response to the Commission’s Copyright Consultation 2014  LIBER wants a copyright exception for Text- and Data Mining (TDM) that does not differentiate between commercial and non- commercial use  Copyright exceptions should not be over-ridden by contracts or technical protection measures  We call for cross-border solutions for access  Licensing is not enough!  The Hague Declaration  Meetings with MEP’s and with Commission officials.

The Way Forward?  European Parliament to vote in plenum on the Reda Report – July 9 th  Commission impact assessment on the Digital Single Market Strategy – before summer 2015?  Commission proposal expected in October will be debated in parliament and between member states