The impact of Option 4 on research organisations in relation to legal certainty and transactions costs is similar to Option 3. Differently from the other options, because of the broader scope of application of the exception, Option 4 would specifically benefit researchers in commercial companies as they would no longer need a specific licence to mine content to which they have lawful access to.
However, corporate users, notably life-science companies, benefit today from a functioning licensing market for TDM of scientific publications and they have not requested any intervention at EU level. TDM is often licensed to these users as part of a wider licensing agreement with rightholders including several uses and services that go well beyond what the exception would allow them to get for TDM purposes (notably in terms of formats, structured data, getting direct feeds into their own databases etc.).
Therefore corporate users are likely to continue to purchase value added services from content owners. This option also entails a risk that publishers may increase the subscription fees for commercial users to compensate for the loss of TDM related revenues (this is more likely to happen with corporate users than with universities because of the different purchasing power, at least as regards larger commercial operators).
This option would have a more significant negative impact on rightholders. As a consequence of the broad scope of the exception, STM publishers would no longer be able to licence TDM for scientific research purposes to commercial players, which represent an essential market for them, notably in areas such as life science and pharmaceutical. Similarly to the other legislative options, this option would in principle not remove rightholders’ ability to generate revenues from selling access to their content.
However, deals between STM publishers and corporate users usually include TDM as part of comprehensive agreements covering a whole series of usage rights and added value services mentioned above. The introduction of an exception would lower the value of these agreements, since TDM rights as such can no longer be subject to licence.
Rightholders may try to compensate the value lost as a consequence of the legislative intervention by raising licences fees for access and other uses/value added services. However, it is not clear whether and to what extent they would manage to do so. Therefore this option is likely to bring about compliance costs and more significant changes to rightholders’ business models than under the previous legislative options. The impact is likely to be all the more significant given the TDM commercial market’s growth potential.
There would be a more negative impact on copyright as a fundamental right as the current balance between rights and exceptions in the area of research set by the current EU legal framework would be altered more substantially. The impact on freedom of research would be positive.