Challenges ahead

The “TDM for any purpose” exception is in principle quite broad, but subject to the very significant opportunity given to rights owners to opt out and expressly reserve such use of works to themselves. The caveat allowing rights owners to opt out is significant and could potentially place a considerable burden on businesses that would arguably need to verify, each time a training set needs to be copied, whether owners of the underlying copyright-protected material have opted out or not. Otherwise, businesses could inadvertently be infringing copyright.

How can one exercise its opt-out? On this topic, the Copyright Directive is somewhat unclear. It provides that a rights owner may only reserve those rights by the use of machine-readable means, including metadata and terms and conditions of a website or a service, and should be able to apply measures (e.g., technical measures) to ensure that their reservations in this regard are respected. This raises many questions including with regard to: (i) the exact manner in which the opt-out must be expressed; (ii) at what point the TDM user needs to check on whether the opt-out has been exercised (e.g., at the time when it first accesses the data, or on a continual basis?); (iii) who bears the burden of proof as between the rights owner and the user (bearing in mind the difficulty a user will have in “proving a negative,” i.e., that the opt-out right has not been exercised); and (iv) how to determine the period of permitted retention, among other things.

The European TDM exceptions are likely to provide a contrasting level of protection to businesses, depending on the type of data they use. If the data being used is likely to belong to the most traditional areas of the content industry, then these exceptions may provide little support for use in commercial AI applications. The geopolitical context thereby created is one in which other jurisdictions have positioned themselves favorably in the race to become global centers for TDM and AI development through their more developed copyright exceptions.

1. See the UK impact assessment no. BIS0312 (2012), “Exception for copying of works for use by text and data analytics,” or two studies carried out by the Lisbon Council in 2014 and 2016: S. Filippov (2014), “Mapping Text and Data Mining in Academic and Research Communities in Europe”, and S. Filippov, P.Hofheinz (2016), “Text and Data Mining for Research and Innovation,” that use as indicators the number of publications containing “data mining” in the title or anywhere in the text as well as patents granted in data mining.