This document discusses the legality of text and data mining (TDM) in Europe. TDM can infringe on copyrights and database rights unless permitted by a license or exception. Currently, only the UK and France have exceptions explicitly allowing non-commercial TDM. The EU is proposing a new mandatory exception, but it may still be limited to non-commercial research. The OpenMinTeD project aims to identify legal tools to support TDM through recommending licenses and lobbying for legislation balancing exclusive rights with exceptions.

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twitter.com/openminted_eu
Giulia Dore, University of Glasgow
UKSG webinar
The Law on TDM in
Europe: an introduction

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A simple question: is TDM legal?
Text and data mining (TDM) as a mighty but fearful
tool
It unlocks information, ascertaining additional value from
prior or novel data, promoting knowledge expansion and
scientific progress
Yet, it encounters technical, economic and legal barriers
that hinder its development
A range of legal obstacles from IPRs to contracts
TDM applies to resources that are likely to be protected
by the law, including but not limited to copyright, sui
generis database right and contractual terms

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The answer is: it depends
To put it simple, you may be lawfully mining when
You rely on licences that grant (TDM) permission, e.g.
Creative Commons (CC) licences or
You benefit from a (TDM) copyright exception, e.g. UK
CDPA 1988, Section 29A
Otherwise, you may be infringing someone's rights
In particular, copyright and sui generis database
(SGDB) right,
and/or be breaching the terms of the contract
if (further) contractual limitations to TDM are applicable

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Lens on Copyright …
How TDM could infringe copyright in three steps:
Virtually any text and data mining activity entails the
copying of the resource to be mined, but
Every act of reproduction (and so the right of distribution)
is shielded by the very expansive exclusive right of the
copyright owner to reproduce copyright works, which lies
at the very core or copyright law:
e.g. UK CDPA 1988, s. 16, listing the acts restricted by
copyright in a work.
Hence, unless the latter authorises such act or a
copyright exception applies, TDM would be illicit

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… and its limited exceptions
In Europe, highly fragmented
Limited range of copyright exceptions: only 1 mandated
by the EU, others (20) optional for Member States (Art. 5
Copyright Directive 2001/29/EC)
For TDM, existing general exceptions may apply, but with
important limitations:
Illustration for teaching or scientific research, Quotations
e.g. UK CDPA 1988, S. 29 (Fair dealing for research and
private study) and 30 (Criticism, review, quotation and news
reporting)
In other words, the same extensiveness enjoyed by the
right of reproduction does not apply to its exceptions

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Lens on SGDB right
How TDM could infringe SGDB:
Similarly to copyright, the right to extract and re-use DB
is particularly broad and pervasive (Database Directive
96/9/EC).
In particular, extraction and re- use of all or substantial
parts of a protected database (made with a substantial
investment in obtaining, verifying or presenting the
contents) as well as reiterated extraction/re-use of its
insubstantial parts is exclusively reserved to the DB
owner. E.g. UK CRDR 1997 (SI 1997/3032)
Therefore, in absence of the rightholder permission or
an applicable exception, any related TDM activity would
result in an infringement

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Lens on Contracts
When no exception applies and you should seek
permission from the right holder to perform otherwise
restricted acts on protected resources
A license agreement is what you need to be authorised
to carry out (as well) TDM activities, although you may
need to negotiate on a one-to-one basis, and this costs!
Besides, having too many licenses may not help
either
Often their language not always clear or standardise and
might lead to inconsistency and incompatibility of terms
To such extent, Open Access (OA) public licenses (PL)
come to an aid. E.g. CCPL

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Is a TDM exception the optimum?
In Europe, only two EU Member States - the UK and
(more recently) France - have enacted a specific
statutory exception that allows making copies of
protected resources for TDM purposes
Focus on the UK CDPA 1988, S. 29A (Copies for text
and data analysis for non-commercial research)
No copyright infringement occurs provided:
(a) a lawful access to the resource, (b) copy is made to
carry out computational analysis (c) for the sole purpose
of research for a non-commercial purpose, (d) along with
sufficient acknowledgement unless unfeasible

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Even with so many boundaries?
While appreciating that contractual terms preventing or
restricting the benefit of such exception are
unenforceable, the non-commercial purpose may actually
diminish the strength of a TDM exception
Besides, under UK law copyright infringement openly
occurs if that copy is transferred or used (and otherwise
dealt) for different purposes, unless the copyright holder
authorises it
Does perhaps the French exception overcome these
precincts? Not really: lawful access and non-commercial
purposes, only resources included in or associated with a
scientific publication for the needs of research

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The EU plans for TDM
A new mandatory exception is projected by the
Commission in the Proposal for a Directive on Copyright
in the Digital Single Market, COM (2016) 593, Article 3
for reproductions and extractions to carry out text and
data mining by research organisations that have lawful
access to the resources for the purposes of scientific
research
Conflicting contractual provisions deemed not
enforceable, but some protecting measures for networks
and databases may still (with limitations) apply.
Will this really “give researchers the freedom to pursue
their work without fear of legal repercussions”, as EU
Commissioner Moedas suggests?

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The role of OpenMinTeD
In particular, the WG3 Working group on IPRs and
licensing focuses on the legal barriers to effective TDM
activities and aims at identifying the legal tools to uphold
the development of TDM services
on two levels:
Licensing, by recommending few and most suitable
licenses and promoting licence compatibility tools
Legislation, by boosting proper (national and EU)
legislative intervention that targets an enhanced balance
among exclusive rights and exceptions

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Thank you
Any questions?
Interested to know more about the OpenMinTeD project?
giulia.dore@glasgow.ac.uk
Presentation licensed under Creative Commons Attribution (CC-BY) 4.0
See full terms at https://creativecommons.org/licenses/by/4.0/legalcode