Guest post by Christine Daoutis, Copyright Support Officer

Welcome to the inaugural blog post of a collaborative series between the UCL Office for Open Science and Scholarship and the UCL Copyright team. In this series, we will explore important aspects of copyright and its implications for open research and scholarship.

Research ideas, projects, and their outcomes often involve using and producing materials that may be protected by copyright. Copyright protects a range of creative works, whether we are talking about a couple of notes in a notebook, a draft thesis chapter, the rough write-up of a data, a full monograph and the content of this very blog. While a basic knowledge of copyright is essential, particularly to stay within the law, there is much more to copyright than compliance. Understanding certain aspects of copyright can help you use copyright materials with more confidence, make use of your own rights and overall, enhance the openness of your research.

Image attribution: Patrick Hochstenbach, 2014. Available under https://creativecommons.org/licenses/by/4.0/

This first post in our series is dedicated to exploring common questions that arise during research projects. In future posts, we will explore some of these questions further, providing guidance, linking to new resources, and signposting relevant workshops. Copyright-related enquiries often arise in the following areas:

Reusing other people’s materials: How do you GET permission to reuse someone else’s images, figures, software, questionnaires, or research data? Do you always need permission? Is use for ‘non-commercial, research’ purposes always permitted, or are there other factors to consider? How do licenses work, and what can you do when a license does not cover your use? It’s easy to be overconfident when using others’ materials, for example, by assuming that images found on the internet can be reused without permission. It’s equally easy to be too cautious, ending up not making use of valuable resources for fear of infringing someone’s rights. Understanding permissions, licenses, and copyright exceptions – what may be within your rights to do as a user – can help you.

Disseminating your research throughout the research cycle: There are open access options for your publications and theses, supporting access to and often, reuse of your work. How do you license your work for reuse? What do the different licenses mean, and which one is most suitable? What about materials produced early on in your research: study preregistrations, research data, preprints? How can you make data FAIR through licensing? What do you need to consider when making software and other materials open source?

Is your work protected in the first place? Documents, images, video and other materials are usually protected by copyright. Facts are not. For a work to be protected it needs to be ‘original’. What does ‘original’ mean in this context? Are data protected by copyright? What other rights may apply to a work?

Who owns your research? We are raising questions about licensing and disseminating your research, but is it yours to license? What does the law say, and what is the default position for staff and students at UCL? How do contracts, including publisher copyright transfer agreements and data sharing agreements, affect how you can share your research?

‘Text and data mining’. Many research projects involve computational analysis of large amounts of data. This involves copying and processing materials protected by copyright, and often publishing the outcomes of this analysis. In which cases is this lawful? How do licences permit you to do, exactly, and what can you do under exceptions to copyright? How are your text and data mining activities limited if you are collaborating with others, across institutions and countries?

The use of AI. Speaking of accessing large amounts of data, what is the current situation on intellectual property and generative AI? What do you need to know about legal implications where use of AI is involved?

These questions are not here to overwhelm you but to highlight areas where we can offer you support, training, and opportunities for discussion. To know more:

• Follow future posts on this blog.
• Register for an upcoming copyright session. If you cannot make those dates, please contact copyright@ucl.ac.uk to arrange a bespoke session.
• Visit our training and resources page for more ideas and links to online tutorials.
• Have a head start: visit our guidance on copyright and publications, copyright and research data and look out for upcoming guidance on text and data mining.

Get involved!

The UCL Office for Open Science and Scholarship invites you to contribute to the open science and scholarship movement. Stay connected for updates, events, and opportunities. Follow us on X, formerly Twitter, LinkedIn, and join our mailing list to be part of the conversation!

Text and Data Mining (TDM) is a broad term used to cover any advanced techniques for computer-based analysis of large quantities of data of all kinds (numbers, text, images etc). It is a crucial tool in many areas of research, including notably Artificial Intelligence (AI). TDM can be used to reveal significant new facts, relationships and insights from the detailed analysis of vast amounts of data in ways which were not previously possible. An example would be mining medical research literature to investigate the underlying causes of health issues and the efficacy of treatments.

The importance of having copyright exceptions in place to facilitate TDM arises from the fact that the swathes of material which need to be mined are often protected by copyright. That would be true for example of “literary works” of all kinds and of images in many cases. It is frequently the case that researchers will have lawful access to the material but will be prevented from applying TDM techniques because copying the material onto the required computer platform risks legal action for infringement on the part of the copyright owners. “Copying” is of course one of the acts restricted by copyright law and in general the greater the amount and variety of material, the greater the copyright risk.

It is worth remembering that when the Government created an exception for Text and Data Mining in 2014, it meant that the UK was ahead of the game. Other countries did not generally have an exception in their legislation at that time. Since then, other jurisdictions have caught up and, in some cases overtaken the UK. Cutting edge research is a highly competitive area and researchers working in a country which benefits from a generous TDM exception will have a distinct advantage.

The existing exception is still significant from the Open Science perspective in enabling research projects where computer analysis of large quantities of copyright-protected material is required, particularly in the context of AI.

Let’s take a closer look at the UK TDM exception and what it allows us to do, before comparing it briefly with the more recent EU exceptions. The UK exception is to be found in Section 29A of the Copyright, Designs and Patents Act 1988.

What does the exception allow us to do?

Copying copyright-protected works in order to carry out “text and data analysis” (“computational analysis” in the wording of the exception). The need to copy arises because researchers must have have the material to be analysed on a specific platform, to carry out the analysis. The need for the exception then arises because without it, the researcher would require permission from the owner of copyright in each item. Without permission (or an exception), the researchers would be infringing copyright by copying a vast swathe of protected material. That in turn would often make the research impractical to carry out.

Who may do this?

Absolutely anyone, the exception says “a person.” This is wonderfully broad and one of the more favourable aspects of the UK exception. For example you don’t need to be working for/ studying at a particular type of institution to benefit from the exception.

Are there conditions?

You must have lawful access to the material. A prime example would be the text of academic journals. We have lawful access to large numbers of e-journals because UCL Library subscribes to them. The exception would allow a UCL researcher to download large amounts of content from e-journals to carry out detailed analysis using specialised tools. It is important to note that the exception cannot be overridden by contract terms. It follows that a term in an e-journal contract seeking to prevent TDM would have no force, in circumstances where the exception applies. This makes the exception a much more useful tool than it would otherwise be.

As you might expect the copies made for TDM purposes may not be used for other purposes, shared etc under the exception.

Significantly, the analysis must be “…for the sole purpose of research for a non commercial purpose.” This is a major restriction, which would rule out many situations where TDM might be used, for example research by a pharmaceutical company developing new drugs which will be marketed commercially. A major issue with the exception is that it can be unclear at what point “non-commercial” shades into “commercial.” A project which starts out as academic research may take on commercial significance down the line and a piece of research with no commercial aspects may be funded by commercial sponsors. It is an important constraint in the legislation which can also be difficult to be sure about in real life situations. It can stand in the way of joint projects by HEIs and commercial organisations.

Still, in situations where we can claim there is no commercial aspect to the research, the exception is potentially very useful. In addition to material which is already digital it can cover projects where digitisation of copyright- protected print material is required to be analysed. It can be very useful in situations where the copyright status of the source material is unclear, since provided the exception applies, there is no need to investigate further the complexities of copyright in the material.

The new EU TDM exception or rather exceptions

The EU Directive on Copyright in the Digital Single Market (DSM Directive) offers two new exceptions, which EM member states are obliged to transpose. They can be found in Articles 3 and 4 of the Directive.

There are important differences of approach to the UK in the answer to the question:  who may carry out the TDM? Article 3 provides an exception which benefits two defined categories of organisations: “Research organisations” and “Cultural heritage organisations.” Included within those groups are for example universities, museums, publicly funded libraries. Commercial organisations are excluded. It seems that independent researchers, not associated with an organisation would also be excluded, even though their research might be “non-commercial.” In common with the UK legislation, this exception cannot be overridden by contract terms and is therefore a powerful tool. The Directive addresses the question of public-private research collaborations in the recitals to the directive, e.g. recital 11. They are not excluded from benefitting from the Article 3 exception.

Article 4 offers a separate TDM exception which is available to anyone (including commercial organisations) but which is limited in a specific way: If the rights owners explicitly reserve the rights to carry out TDM within their works, then it cannot be mined under the exception. In other words, the EU DSM Directive goes one step further than the UK by offering an exception which can be used to mine lawfully accessible works by commercial organisations (or by anyone else), but it does not apply if the rights owner has explicitly ruled out TDM.  By contrast, commercial organisations would not be able to use the UK exception, unless they can claim the specific research is for a non-commercial purpose.

Guest post by Chris Holland, UCL Copyright Support Officer. For more information or advice contact: copyright@ucl.ac.uk