SWD IA on EU copyright modernisation – impacts of baseline option for text and data mining

Problems faced by public interest research organisations are likely to remain largely unsolved under this option. Publishers’ market driven initiatives aiming at facilitating mining for non-commercial purposes on the basis of licences will continue to be developed. Over time more publishers are likely to include TDM clauses in their subscriptions or provide open access solutions. This would improve legal certainty for researchers to some extent.

However different licensing terms and conditions would stay at least in part. Researchers’ resistance to TDM offers based on licences is likely to continue. Fragmentation in the single market as a result of different TDM laws across MS would also remain unsolved and is likely to worsen as more MS are likely to adopting national TDM exceptions in the absence of EU intervention. Overall, the objective of ensuring full legal certainty for researchers seeking to mine the copyright-protected content they have lawful access to would not be achieved.

TDM may increasingly be included in subscription licences that scientific publishers conclude with public interest organisations such as universities and licensing-based tools may be developed further. However, these developments are not likely to result in substantial increase in revenues for publishers, given on the one hand the resistance of researchers to these offers and on the other hand the unlikely increase of licensing fees due to the inclusion of TDM in subscription licences.

The adoption of national TDM exceptions by an increasing number of MS could progressively erode publishers’ ability to licence TDM across the EU. However national exceptions would have to be limited by the “non-commercial” condition set out in the current EU rules and, if drafted along the lines of the 2014 UK precedent (“lawful access” condition, exception limited to the reproduction right) they would not directly affect the publishers’ subscription market.

Under the baseline scenario, scientific publishers are likely to continue to expand the TDM licensing offers for the commercial market (e.g. pharmaceutical and life-science companies) – often in the context of added value packages including not only TDM as such but also providing additional facilities (e.g. pre-formatting of data, direct injections into existing databases etc.). Revenues from commercial licences are likely to increase substantially over time (see Option 4).

Publishers would continue to be able to use licences as a mean to impose technical and contractual means to protect their content (ensure that only authorised users can access and carry out TDM and protect their databases from massive downloads).

The persisting copyright related problem slowing down the development of TDM in European research would, at least in part, remain unsolved. The baseline would have no impact resulting from EU action on copyright as a fundamental right and on research, protected under the fundamental right of freedom of art and science under Article 13 of the Charter.