Text and Data Mining (TDM) Exception in the UK
On June 1, 2014, new amendments to copyright regarding research and education came into effect in the UK. The text of the new laws may be read here. The UK Intellectual Property Office has written some easy-to-read explanations of the reform here.
Among those new amendments, the one that is most relevant to scientific research is the addition of Art. 29A to the Copyrights, Designs and Patents Act (CDPA), concerning ‘copies for text and data analysis for non-commercial research’. The text reads:
(1) The making of a copy of a work by a person who has lawful access to the work does not infringe copyright in the work provided that—
(a)the copy is made in order that a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose, and
(b)the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).
(2) Where a copy of a work has been made under this section, copyright in the work is infringed if—
(a) the copy is transferred to any other person, except where the transfer is authorised by the copyright owner, or
(b)the copy is used for any purpose other than that mentioned in subsection
(5) To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable.” (emphasis added)
The scope of this new exception was restricted by Art. 5.3(a) of the InfoSoc Directive (see Copyright Exceptions). This is why it had to be limited to non-commercial research, and require acknowledgement of the source (unless it would be impossible). Two elements, however, make this exception more than a simple transposition of the research exception in the Directive (please note that the UK already has a relatively broad research exception - Art. 29 CDPA):
- On one hand, lawful access to the work is a pre-condition of this exception. It is, however, fairly unclear what lawful access means exactly. The definition of ‘lawful use’ in Recital 33 of the InfoSoc Directive (‘A use should be considered lawful where it is authorised by the rightsholder or not restricted by law’ - and reproductions of copyright-protected works are, in principle, restricted by law) may provide some guidance here, but the solution would then seem absurd (an authorisation of the rightsholder would be necessary to rely on the exception, since a contract between the rightsholder and the user could determine what is and what is not ‘lawful use’!). The guidance published by the UK Intellectual Property Office suggests however that one has lawful access to the work if he/she has a right to read it. This condition remains open to some interpretation in the future.
- On the other hand, the new exception is expressly non-overridable by contractual clauses (see Copyright Exceptions for general rules concerning the relation between copyright exceptions and contracts). This means that a contractual clause (e.g. in a license or in terms of service) that prevents or restricts TDM is unenforceable. This is very important for researchers.
Furthermore, it should be noted that this new exception is limited to the reproduction right, even though art. 5.3(a) of the InfoSoc Directive allows for exceptions to both reproduction and communication to the public rights. In practice, this means that copies made in the process of TDM cannot be shared or transferred -- this would amount to copyright infringement.
It should also be noted that publishers may still restrict access to their databases with Digital Rights Management (DRM, also referred to as Technological Protection Measures (TPMs)). Indeed, circumvention of such measures is prohibited (see Art. 6 of the InfoSoc Directive) and constitutes copyright infringement. UK law does provide a process for requesting access to works protected by DRM, which is to write to the UK Secretary of State under the terms of section 296ZEA of the Copyright, Designs and Patents Act (also see Jisc, EFF, and Martin Eve). The Libraries and Archives Copyright Alliance (LACA) underwent this process in 2015, on behalf of a researcher at a UK university who wanted access to TPM-protected material on a website. The Intellectual Property Office turned down the request for remedy because of language in 296ZEA: "does not apply to copyright works made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them." See CILIP press release.
Finally, this new exception concerns only copyright and not the sui generis database right. It seems that in many cases the owner of the sui generis database right may prevent TDM operations (as it has the exclusive rights of extraction and re-utilization of a database’s substantial part).
Text and Data Mining exception in France
On October 7, 2016, a Law for a digital Republic ("Loi pour une république numérique") was adopted in France. As expected, thanks to the intervention of the Parliament in the text of the bill, the document contains TDM exceptions which have been introduced in the Intellectual Property Code (Code de la Propriété Intellectuelle, CPI), effective immediately.
According to art. L. 122-5, 10° of the CPI, the rightsholders cannot forbid “Copies and digital reproductions made from a lawful source for the purposes of mining text and data included in or associated with scientific publications, for public research purposes, excluding all commercial purposes” [translation - PK]. The details related to the application of this new rule are to be regulated by a decree which is expected to appear within the next six months. Until then, the provision remains a dead letter. It is interesting, however, that the text does not speak about “lawful access” or “lawful user”, but instead focuses on the lawfulness of the source itself. The exception, however, is limited to “public research” (i.e., probably, research carried out by public organisations) and to data “included in or associated with scientific publications”.
Interestingly, a similar (yet different) provision has also been adopted regarding the sui generis database right. According to art. L. 342-3°, the rightsholder cannot forbid “Copies and digital reproductions of a database by a lawful user, made for the purposes of mining text and data included in or associated with scientific publications, for research purposes, excluding all commercial purposes. Archiving and communication of technical copies made during the process, after the completion of the research project for which they were made, is guaranteed by an organisation designated by decree. Other copies and reproductions are deleted”. This text is rather enigmatic (especially in the context of art. 9 of the Database Directive) and its interpretation will not be an easy task.