The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market – Technical Aspects

Summary:

In the age of ‘Big Data’ the value does not lie in data or text taken in their isolation, but rather in the extraction of such value, also by means of predictive text and data mining (TDM) techniques that enable the discovery of patterns and new relations.

Legal uncertainties concerning the treatment of TDM practices under EU and national laws may inhibit the development of TDM in Europe. Other countries, e.g. US, may consider TDM activities as fair use of copyright works. The UK has adopted a specific TDM exception, which allows persons having lawful access to undertake text and data analysis for non-commercial research.

There is consensus around the potential of TDM in several heterogeneous fields, also thanks to affordable technologies. With regard to business methods:

• On consideration of both the variety of TDM practices and their fields of application, the business models of those that undertake TDM vary.
• If one considers the position of rightholders – notably publishers – their approaches to TDM differ, with some devising licensing solutions, and others allowing non-commercial TDM without the need for a licence.

By means of necessary simplification, it appears possible to distinguish three common steps in TDM processes:

• Access to content, which may be freely accessible or only accessible through a licence;
• Extraction and/or copying of content, if required. In relation to this step, legal restrictions – including rights in databases, copyright and related rights – for certain acts of extraction and/or copying might result in the unlawfulness of acts that are preparatory to actual TDM if such acts are carried out without permission from the relevant rightholders.
• Mining of text and/or data and knowledge discovery, which requires the pre-processing of relevant text and data and extraction of structured data, in order to then analyse such output.

A mandatory exception allowing TDM is welcome. Its scope, however, should not be unduly narrow and such as to stifle innovation coming from different sectors, whether research organizations or businesses.

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