One of the significant new exceptions introduced this year enables Text and Data Mining (TDM) to be carried out on bodies of copyright material as long as it is for a “non commercial purpose” (and the sources should be acknowledged where possible.)

TDM includes a range of advanced techniques for analysing vast quantities of data in order to draw out new facts or statistical trends, or gather evidence of previously unexplored relationships (for example between chemical substances and medical conditions). The potential uses of TDM are very wide ranging and may occur in all disciplines.

The new exception makes the application of TDM to copyright works possible by removing the copying of material (which is an essential part of the TDM process) from the realms of infringing activity.

A Jisc report on the value and benefits of text mining from 2012 mentions that at that time TDM activities in higher education were mainly focussed on Open Access materials because the latter were more readily available. Since the new TDM exception was introduced in June 2014, the content of a vast number of e-journals to which universities such as UCL subscribe should also be available for TDM. This results from the fact that under the legislation, the terms of our contracts with the publishers of those journals cannot over-ride the TDM Exception:

“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”, Copyright, Designs and Patents Act 1988, Section 29A(5).

This means that any terms in suppliers’ contracts which sought to restrict advanced computer analysis of their repertoire will no longer have any weight, at least where non commercial research is concerned.

Libraries are given greater flexibility by one of the less obvious changes made to the Copyright legislation earlier this year. This concerns requests for a copy of a periodical article from one library to another and is governed by Section 41 of the Act. Many of the updated exceptions include a clause stating that they cannot be over-ruled by the terms of a contract, which tends to reverse the situation prior to the 2014 changes. Section 41 of the Act  includes such a clause:

“41(5) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”

It follows from this that a library may now supply a single copy of a periodical article from a given issue of an “e-periodical”, just as they may supply a copy from the print publication. The terms of the contract under which the e-periodical is supplied may formerly have prevented this, but it seems they can no longer prevail over the exception.

Naturally the libraries concerned need to be sure that they are complying with the legislation, for example the library fulfilling the request must have legitimate access to the e-periodical and must not supply more than one article from a single issue. It is important to note that this “library to library” exception does not permit the supply of copies from books unless it is practically impossible to contact the copyright owner in order to seek permission.

One of the less obvious changes in the copyright exceptions introduced in June is the exception in Section 41 of the CDPA 1988 which enables us to supply another library (any library which is not conducted for profit) upon request with part or the whole of a published work, without infringing copyright.  

The main condition is that the librarian does not know and could not reasonably find out the name and address of the person able to give copyright permission.

Of course this condition would rule out supplying a copy of most recently published works under this exception, as there would be little difficulty in finding out whom to contact for permission.

However journal articles are treated as a special case by Section 41 and are not subject to that condition. If we receive a request from another library for a copy of one article from a journal then we are able to supply that copy without applying that test or requesting permission from the publisher. We may choose to charge for this service or not, but if we do the amount must be calculated by reference to the costs incurred in making the copy.

When you add to this the fact that Section 41 covers copyright works in any format then it follows that we could supply a single article from an e-journal which we subscribe to. As with many of the new exceptions, this cannot be over-ridden by the terms of our licence with the supplier so we would not need to refer to the licence before providing a copy.