EC’s Proposal for the Directive on Copyright in the Digital Single Market
Copyright reform in the EU has been a long time coming. The latest development is that on September 14, 2016, a Proposal for a Directive on Copyright in the Digital Single Market was released.
Article 3 of this proposal covers text and data mining by research organizations. It reads:
1. Member States shall provide for an exception to the rights provided for in Article 2 [reproduction right] of Directive 2001/29/EC [the InfoSoc Directive], Articles 5(a) [reproduction of copyright-protected databases] and 7(1) [extraction and re-utilisation of a database] of Directive 96/9/EC [the Database Directive] and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject- matter to which they have lawful access for the purposes of scientific research.
2. Any contractual provision contrary to the exception provided for in paragraph 1 shall be unenforceable.
3. Rightholders shall be allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject-matter are hosted. Such measures shall not go beyond what is necessary to achieve that objective.
4. Member States shall encourage rightholders and research organisations to define commonly-agreed best practices concerning the application of the measures referred to in paragraph 3.
First, it should be noted that the text is only a proposal; if the new Directive is adopted (which is likely to take about two years), its final shape may be completely different from the proposal (in fact, it is not rare that the Commission makes bold proposals which are then significantly watered down during the negotiations). If the proposal is adopted, it may constitute a major step forward for TDM in Europe. The following elements of the proposal deserve to be mentioned:
- The proposed TDM exception would be mandatory, and not optional (like the exceptions of Art. 5.2 and 5.3 of the InfoSoc Directive), and as such it would have to be adopted by all the EU Member States;
- The exception would concern both copyright and the sui generis database right. It is a major improvement on the scarceness of exceptions to the sui generis database right provided for in Art. 9 of the Database Directive.
- The exception would apply only to research organisations (such as universities and research institutes). According to recital 4 of the proposal, “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 allowing them to exercise control because of structural situations such as their quality of shareholders or members, which may result in preferential access to the results of the research, should not be considered research organisations for the purposes of this Directive”. It seems therefore that even though commercial purposes are not expressly excluded from the scope of the exception, research organisations “upon which commercial undertakings have a decisive influence” would not be able to benefit from the exception, which is rather disappointing;
- Lawful access would be a pre-condition of this exception (see the remarks concerning the UK exception). Recital 3 of the proposal mentions “lawful access, for example through subscriptions to publications or open access licences”; this seems to mean that access is lawful if it is authorised by the rightsholder. It remains unclear therefore if data available in “gratis Open Access” (i.e. freely accessible on the Internet, but without any re-use rights - see What is an ‘open’ license?);
- The exception would not be overridable by contractual clauses (see the remarks concerning the UK exception above);
- The exception would *not* override Digital Rights Management/Technological Protection Measures, which is regrettable. It seems, however, to limit the publishers’ right to use DRM that are necessary to ensure the security and integrity of their data. Par. 4 encourages Member States to define best practices regarding the use of DRMs; however, these best practices would likely be country-specific, which would go against the purpose of a directive, i.e. harmonization of law throughout the EU.
The draft has been criticized by research organizations and nonprofits such as Creative Commons (“The Directive fails to deliver on the promise for a modern copyright law in Europe”) and Wikimedia (“The European Commission’s leaked plans for EU copyright reform show that their primary concern is rightsholder revenue, with the public’s interest in accessing and sharing knowledge taking a back seat.”). Criticisms include that the text and data mining exception is available only to nonprofit research institutions, that sites that host “large amounts of works” will be compelled to enter agreements with rightsholders to monitor their platforms for copyright infringement, the creation of a new 20-year copyright for press publishers that will require news aggregators (such as Google News) to pay fees in order to aggregate articles.