Entertainment and Media Guide to AI

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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.

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.

Key takeaways
  • The EU’s Directive on Copyright in the Digital Single Market introduced two TDM exceptions: one for research and the other for any type of use
  • The exceptions are likely to provide a contrasting level of protection to businesses, depending on the type of data they use