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Draft proposal for a directive on copyright in the Digital Single Market – new exception and research organisations

New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text and data mining, faster than in done by individuals. Those technologies allow researchers to process large amount of information to gain new knowledge and discover new trends. Whilst text and data mining technologies are prevalent across the digital economy, there is widespread acknowledgement that text and data mining can in particular benefit the research community and in so doing encourage innovation.

However, in the Union, research organisations such as universities and research institutes are confronted with legal uncertainty as regards their ability to perform text and data mining of content. In certain instances, text and data mining may involve acts protected by copyright and/or by the sui generis database right, notably the reproduction of works or other subject-matter and/or the extraction of contents from a database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightsholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required.

Union law already provides certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, these exceptions and limitations are optional and not fully adapted to the current use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access licences, the terms of the licences may exclude text and data mining.

As research is increasingly carried out with the assistance of digital technology, there is a risk that the Union’s competitive position as a research area will suffer unless steps are taken to address the legal uncertainty for text and data mining.

This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. Such an exception would seek to ensure that text and data mining can be carried out even if it requires the reproduction of works, or other subject-matter, or of part thereof; or the extraction of the whole or a substantial part of the contents of a database protected by the sui generis right.

The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnerships. The term “scientific research” within the meaning of this directive should cover both the natural sciences and the human sciences.

Research organisations across the EU encompass a wide variety of entities and include those whose primary goal is to conduct scientific research or to do so together with the provision of educational services. Due to the diversity of such entities, it is important to have a common understanding of the beneficiaries of the exception. Despite different legal forms and structures, research organisations across Member States generally have in common that they act either on a not for profit basis or in the context of a public-interest mission recognised by the State.

Such a public-interest mission may, for example, be reflected through public funding or through provisions in national laws or public contracts. At the same time, organisations upon which commercial undertakings have a decisive influence, notably because of structural situations such as their quality of shareholders or members, which may result in them enjoying preferential access to the results of the research, should not be considered research organisations for the purposes of this Directive.