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

Mandatory exception applicable to public interest research organisations covering text and data mining for the purposes of both non-commercial and commercial scientific research

Similar positive impact on researchers as under Option 2 as regards both legal certainty and reduction of transaction costs, as a result of the introduction of an exception harmonised at EU level. Additional positive impact as this option would remove the legal uncertainty and the grey area as regards the research projects carried out by public organisations with a possible commercial outcome, including in cooperation of these organisations with private partners (PPPs).

Commercial companies are not among the beneficiaries of the exception under this option. They have generally not asked EU intervention in this area as a B2B licensing market exists (see Option 4). This option is not expected to have a significant indirect impact on these players as their needs in relation to TDM are generally different than those of universities and other public interest research organisations (see Option 4).

The legal technique to define the scope of the exception is different, however this option is not expected to have a substantially different impact on rightholders than Option 2. In particular, the fact that the exception would not be subject to the “non-commercial purposes” condition is compensated by the application of the exception only to research organisations.

The mitigating effect of “lawful access” condition would apply also under this option and as a result the intervention is not expected to result in significant changes to the publishers’ business models, in particular as regards their subscription market. Like Option 2, this option would leave untouched the purely commercial TDM market which constitutes an important source of licensing revenues for STM publishers (e.g. licences with life science companies- see Option 4).

Increased impact on copyright since the present option is not limited to non-commercial purposes. However, the impact is mitigated by the “lawful access” condition and the fact that the beneficiaries would not include commercial operators. In all the current balance between rights and exceptions in the area of research is only going to be altered in the margins by this option. On the other hand this option would have an incremental positive impact on the freedom of art and science.

Option 3 is the preferred option. This option would create a high level of legal certainty and reduce transaction costs for researchers with a limited impact on rightholders’ licensing market and limited compliance costs. In comparison, Option 1 would be significantly less effective and Option 2 would not achieve sufficient legal certainty for researchers, in particular as regards PPPs.

Option 3 allows reaching the policy objectives in a more proportionate manner than Option 4, which would entail significant foregone costs for rightholders, notably as regards licences with corporate researchers. In particular, Option 3 would intervene where there is a specific evidence of a problem (legal uncertainty for public interest organisations) without affecting the purely commercial market for TDM where intervention does not seem to be justified.

In all, Option 3 has the best costs-benefits trade off as it would bring higher benefits (including in terms of reducing transaction costs) to researchers without additional foregone costs for rightholders. The preferred option is also coherent with the EU open access policy and would achieve a good balance between copyright as a property right and the freedom of art and science.