A new open letter from EARE (the European Alliance for Research Excellence) to the MEPs sitting on the EU Parliament’s Legal Affairs Committee (JURI Committee) puts the case for a really effective and workable copyright exception for Text and Data Mining (TDM) in Europe. UCL is one of some 20 organisations which have signed the letter, representing universities, research organisations, libraries and businesses in Europe.  The letter makes a strong case for an exception which permits anyone with lawful access to a body of copyright protected material to use the innovative techniques of TDM to carry out computer-based analyisis of that material without the risk of infringing copyright. The JURI Committeee will be considering amendments to the draft Copyright Directive in the near future, so this initiative is very timely.

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The draft EU Directive on Copyright in the Digital Single Market is currently being scrutinised by a series of European Parliamentary committees and is open to proposed amendments which could either maximise the usefulness to the HE and research sector of the proposed copyright exceptions or alternatively render them quite unhelpful. This is the subject of a great deal of advocacy by groups supporting a more user-friendly copyright framework and those who are opposed to more generous exceptions.

In this context UCL Library Services has recently lent its support to the European Alliance for Research Excellence (EARE) which provides a platform for those advocating a more generous EU wide exception for Text and Data Mining (TDM).

The original wording of the draft Directive (Article 3) provided an exception only for the benefit of a narrowly defined class of “research organisations” run on a non-profit basis. That would create uncertainty about the position of collaborative projects of all kinds between universities and commercial organisations, including technology based start-ups.

The position of EARE is that since one has to have “legal access” to the information in order to carry out TDM under the exception then the exception should be available to anyone who has legal access not just a narrow class of research organisations.  This is an significant issue for the future of research in Europe given the importance of TDM in all areas of research.

The long awaited EU Directive on Copyright in the Digital Single Market (COM(2016) 593 final) has just been published. At this point it is just a “proposal” and will need to complete the EU legislative process. In addition, as a “Directive” it will not have immediate effect in the member states when it has become law. It needs to be implemented in each EU member state and there may be variations in the way it is eventually implemented, although the provisions are mandatory, not optional like most of the current EU copyright exceptions.  It includes some positive features offering modest improvements. The negatives will be covered in a follow-up post:

• Text and Data Mining exception (Art.3). Currently the UK is the only EU members which has a TDM exception.
• Education exception (Art.4) covering the use of digital material for teaching. This complements the existing exception and covers providing digital material in a secure environment such as a VLE. It covers distance learning and cross border delivery within the EU.
• A broader Preservation exception than we currently enjoy in the UK (Art. 5) for cultural heritage organisations which looks as though it might cover collaborative and cross border preservation schemes.
• Framework for applying Extended Collective Licensing (Art. 7) to out-of-commerce works (the UK already has this – it is a weaker solution than providing a new exception, depending as it does on the willingness of rightsholders and collective management organisations).

Perhaps the most positive aspect is that these new exceptions (being mandatory) will apply to all EU member states and will apply to cross-border activities within the EU. [Part 2 on the less positive aspects of the Directive to follow]

The European Commission has published a “communication” outlining its long-awaited proposals for copyright reform. Specific areas of change are highlighted, some of which are very relevant to HE and research:

An EU wide Text and Data Mining exception is proposed, which would enable “public interest research organisations” to carry out TDM on any content to which they enjoy legal access. For previous posts on TDM see here. There is also an excellent explananation of the importance of TDM on the Universities UK blog.

The UK is ahead of the game (in EU terms) having implemented an exception in 2014 to enable TDM providing it is for a non commercial purpose. Library and research organisations have lobbied energetically for a TDM exception which would apply in all EU member states and which would not have the “non commercial” limitation .

Just as there is some doubt about where the boundery lies between commercial and no commercial so there is some uncertainty about the scope of “public interest research organisation”. This may be clarified in the draft legislation to follow in Spring 2016.

In any case,  an EU wide exception with some limitations is  probably better than no exception. This will free up collaborative TDM projects between researchers in mutiple EU member states which would previously have been hindered by copyright considerations.

Julia Reda, MEP for the German Piratenpartei, has just published the first draft of her report on copyright reform commissioned by the European Parliament. You can also read Ms Reda’s blog, here . The measures recommended in the report are very favourable to users of copyright material, including the reduction of the standard copyright term to the author’s lifetime plus 50 years (the minimum requirement of the Berne Convention). Among other measures the Report also recommends:

Extending the Text and Data Mining exception to cover TDM for any purpose (including commercial); Creating a new exception permitting libraries to lend e-books, “…irrespective of the place of access”

The report also favours a new piece of EU legislation replacing the Copyright Directive, which would apply immediately across the EU without requiring national implementation (it would need to be a “Regulation” as opposed to the current Copyright Directive).

It would follow that the various exceptions included in the new legislation would be mandatory in all member states. The current list of exceptions in Article 5 of the Directive resembles a smorgasbord where the member states can select the exceptions of their choice while leaving others on the table. The current situation creates complexity and uncertainty around cross border access to copyright material within the EU. It will be interesting to see how Julia Reda’s report is received by the European Parliament and other EU bodies.

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.