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Introduction
The EU has followed the U.S. lead, albeit with a much shallower version of the exception as far as businesses are concerned. The Directive on Copyright in the Digital Single Market, adopted in 2019 (Copyright Directive) introduced two mandatory exceptions under EU copyright law. The first is for research and cultural organizations to conduct research; and the second is available to any type of beneficiary for any manner of use, but with a significant caveat – it may be overridden by “opt-out,” a concession to rightsholders introduced during the very last stage of the Copyright Directive’s adoption process and which is fraught with practical difficulties.
Geopolitics of AI
Text and data mining in the EU – a tale of two exceptions
Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market (Copyright Directive) created two TDM exceptions: one for research and another for everyone else.
TDM for research
The machine reading problem and its copyright law implications is not new. Studies dating back from 2012 and 20141 had long identified the potential copyright headache that might stem from it and the world of research, in particular, had been calling for lawmakers to tackle the issue EU-wide.
The initial version of the Copyright Directive, published by the European Commission in 2016, answered this call by setting out one exception, under article 3, for TDM by research organizations and cultural heritage institutions. The exception was, however, limited to the purposes of scientific research making the exception largely inapplicable for commercial purposes.
TDM for any purpose
The second TDM exception, extending the scope of article 3 to everyone else, was added just a few weeks before the text’s adoption date, under the pressure of the tech sector whose future was hanging in the balance, absent the provision. A compromise, however, had to be reached with the rightsholders and it materialized in the form of a significant caveat: the ability for copyright holders to opt out of that exception and expressly reserve such use of works to themselves.
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.
- 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.