14 September 2016
Today, the European Commission has presented its legislative proposal to update the EU framework on copyright. LERU is very pleased to see that the EC has finally included the much needed mandatory exception for Text and Data Mining in the proposed Directive on copyright in the Digital Single Market. This exception will allow Europe to further develop its research potential so as to remain competitive in the global landscape. Although it is clear that there is much room for improvement in the draft directive, LERU believes that this is a first step in the good direction and calls on the other institutions involved in the legislative procedure (European Parliament and Council) to strengthen and widen the exception so as to ensure that it will be good for research but also good enough for innovation.
Text and data mining - What is it about?
“Text and data mining (TDM) is the process of deriving information from machine-read material. It works by copying large quantities of material, extracting the data, and recombining it to identify patterns” (JISC). Despite the technical definition of TDM, many daily practical benefits arise from it for both research and society in general. TDM is a necessary tool for researchers in order to deal with the vast amount of data and publications. It allows for the acceleration of knowledge creation, competitiveness and growth.
The situation until now
Far from taking advantage of TDM, “European universities and scholars lag behind” (the Lisbon Council, 2014).The lack of a TDM exception in the EU copyright framework has led to a situation of legal uncertainty and a fragmented copyright regime (different in the many Member States) which is difficult for researchers to use to its full potential. As highlighted by the European Parliamentary Research Services, “the absence of legal certainty to support the development of Text and Data Mining is a key gap in urgent need of addressing.” In the years to come, this situation has the potential to change with the draft directive presented today by the European Commission.
What is the European Commission proposing?
The EC is proposing to introduce a mandatory exception for TDM for research organisations. LERU welcomes this because making the exception mandatory at the EU level (no more differences between Member States once implemented) will bring about legal certainty. Other positive elements are that the mandatory exception cannot be overridden by contract and that it does not include a difference between commercial and non-commercial research (a distinction that does not make sense given the thin line between both).
However, there is still much room for improving the proposal and LERU hopes that during the next phases of the legislative procedure the other institutions will rise to the challenge of further improving it.
What should be done to ensure that the exception is good for research and innovation? The European Parliament and Council should strengthen and widen the exception in the following way:
1) Strengthen the exception by deleting the reference to technical safeguards (art.3.3).
Rightholders (publishers) would 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”. This provision will certainly be unfairly used (and abused) by publishers to limit the right to text and data mining and to prevent researchers from using their own tools. In order to ensure that the TDM exception is effective and fit-for-purpose for research, this provision should be deleted. Otherwise, the TDM exception risks becoming an empty box.
2) Widen the exception.
“Research organisations”,which include “a university, a research institute or any other organisation the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services” (art.2) will be covered by the exception (art.3.1). Research organisations would also benefit from the exception when they engage in public-private partnerships (para.10).
However, this is not ambitious enough, not for the EU.First, because LERU firmly believes that “the right to read is the right to mine” (cf. Murray-Rust, 2012) and that anyone with legal access to the content should be able to mine it. Second, because research organisations are closely linked to and at the origin of many start-ups and their innovation. The proposed exception sets out a path which is good for research but not ambitious enough for innovation. In May 2016, the Competitiveness Council highlighted the importance of the ”Innovation Principle” (to make sure that any regulation is fit for research and innovation). Wouldn´t a directive that turns its back to innovation by start-ups be contrary to this principle?
And last but not least…the proposed directive and the transparency & remuneration obligations
LERU is delighted to see that the proposed directive includes a transparency obligation: authors will have to receive sufficient information on the exploitation of their works from those to whom they have licensed or transferred their rights, notably as regards modes of exploitation, revenues generated and remuneration due (art.14). Furthermore, authors should be entitled to claim “additional, appropriate remuneration from the party with whom they entered into a contract for the exploitation of the rights [publishers] when the remuneration originally agreed is disproportionately low compared to the subsequent revenues and benefits derived from the exploitation of the works or performances” (art.15).
LERU Secretary-General Kurt Deketelaere states: “These obligations are an important precedent and of outmost importance for those of us who fight for the transparency of "big deals" and the need to put an end to the excessive amounts of profit that publishers have been making from scholarly research for a very long time. Although there is still room for improvement, this proposed directive really can be the first step in tipping the balance towards a more equitable situation for research. We are grateful for the huge efforts made by Commissioner Moedas on this issue. It has not been an easy fight, and it is clearly not over yet. We will have to stay vigilant for the publishers’ expected, negative reactions."
The Dutch Presidency rises to the occasion (LERU, May 2016)
EU copyright reform: time to walk the talk! (LERU, December 2015)
The Right to Read is the Right to Mine (LERU, October 2015)
Once upon a time there was a Pirate…fighting for the reform of copyright (LERU, June 2015)
European Commission Thinks Again on Copyright White Paper (LERU, July 2014)
European Research Organisations Call on Elsevier to Withdraw TDM Policy (LERU, July 2014)