Legislative intervention introducing a harmonised exception would increase legal certainty and reduce rights clearance costs. Researchers would be able to mine scientific publications subscribed to by their institution in full legal certainty as long as this is done for non-commercial scientific research. In addition, transaction costs for public interest research organisations could be considerably reduced.
In spite of the positive impact of this option for public interest research organisations, some legal uncertainty could remain because of the “non-commercial scientific research purposes” condition. Researchers have raised the concern that a significant grey area would remain as regards research projects carried out by public interest research organisations which may eventually have a commercial outcome (as a result of a transfer of technology agreement or other). This grey area may cast doubts in particular on research organisations’ partnerships with private operators (PPPs) which represent a large part of publicly funded (at EU or national level) research projects.
This option may in theory lead to an increase in subscription fees for public interest research organisations if publishers raise the subscription fees to compensate for possible losses caused by the exception (i.e. publishers may try to absorb the value of TDM in the subscription fee). However, there is no evidence of any significant rise in the fees of subscription licences which have included TDM over the last few years.
Under this option rightholders, notably scientific publishers would no longer be able to authorise or prohibit TDM of the content they give researchers access to (as long as this is done for non-commercial scientific purposes). However, this impact would largely be reduced by the “lawful access” condition, i.e. by the fact that the exception would not affect publishers’ ability to continue to authorise or prohibit access to their content and to generate revenues from selling subscriptions to universities and other research organisations.
As a consequence this option is not likely to result in substantial changes to the publishers’ business model, in particular as regards their subscriptions market. Publishers would in principle lose the ability to licence TDM as a self-standing use; however there is currently no evidence of a specific TDM market separate from the subscription market in the academic/non-commercial context.
The trend over the last few years has been for STM publishers to gradually include TDM in the subscription licences without significant increase of licences fees (as mentioned above). This seems to confirm the absence of a significant extra value of TDM in the context of current subscription licences. Similarly to STM publishers, the “lawful access” condition would substantially mitigate the impact on other rightholders whose content could be relevant for mining purposes.
In some fields, such as linguistic research, newspapers may be an important source for analysis, and TDM may be the main feature of licences (i.e. users primarily want to mine the content rather than to read it). In these cases newspaper publishers (and other rightholders that may be in a comparable situation) would in any case be able to factor in the value of TDM in the licence fee, given that they would remain in control of the decision whether authorise or prohibit access to the content.
Today rightholders may impose on users, through TDM licences clauses, technical conditions which they consider important, among other things, to prevent unauthorised uses of the content being mined and protect the technical stability of their databases. In view of the current limited self-standing economic value of TDM in licences with universities/public research organisations, the possibility for STM publishers to impose such conditions is often invoked as a key reason for them to retain the ability to licence TDM.
These rightholders’ concerns would be mitigated by the introduction in legislation of a provision allowing content owners to apply proportionate measures necessary to guarantee the security of their systems without unduly hampering TDM. Additionally, stakeholder dialogues would encourage the identification of mutually agreed technical solutions and best practices.
There would be an impact on copyright as a fundamental right but the current balance between rights and exceptions will not be substantially altered by this option, as EU law already contains exceptions allowing uses of IP protected content for the purposes of non-commercial scientific research. The impact on freedom of art and science would be positive.