De Wolf and Partners (2014a)
|De Wolf & Partners (2014)
|Study on the Legal Framework of Text and Data Mining (TDM)
|De Wolf & Partners
|De Wolf & Partners, Study on the Legal Framework of Text and Data Mining (TDM) (2014).
|Definitive , Open Access
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|About the Data
|Comparative legal analysis of exceptions and use related to text data mining.
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In today’s world, the amount of available information is growing at an exponential rate, and it becomes more and more difficult to read, on any given topic, even if very specific and narrowly defined, whatever has been published, be it by publishers in subscribed periodicals or databases, in print materials or on the Web. TDM is, according to some, a growing and very promising economic sector. Its applications seem to be full of potentialities, in a whole range of sectors, from forensic investigation, to predictive marketing and scientific research in all kinds of sectors (be they commercial or not). At the same time, in today’s world, most information becomes available in a digital format, either from its first creation or because of the growing digitization of existing print archives. Research is more and more relying on data analysis techniques and, as the quantity of information grows, so does the need to be able to rely on data analysis, because computers and software will more and more have to be called upon to analyze quantities of materials which human beings will, for time and resources reasons, no more have the possibility to read and screen. Data analysis also offers the possibility to uncover new relationships between information and data which science had always been unaware of. From a legal point of view, data analysis raises various issues, one of the important one being probably privacy and personal data protection. This Study however concentrates only on intellectual property, and particularly copyright and database protection (sui generis right). A few countries in the world have adopted or are in the process of adopting specific copyright provisions to introduce a data analysis exception in their legislation. The purpose of this Study was to describe how data analysis fits within the present legal context in Europe (both in terms of copyright and of database protection), to highlight the issues which may constitute obstacles or difficulties when applying the existing legal texts, and to analyze whether a new exception for data analysis would be useful or necessary. The purpose was not to suggest ready-to-use provisions for a new possible directive but only to give directions and make suggestions.
Main Results of the Study
On the basis of our analysis, our suggestion is to have a new specific data analysis exception which would be inspired from, and contain partly the same conditions than, the scientific research exceptions, but which would have its own peculiarities. The suggestions are made only for TDM, not for scientific research in general.The main reasons which, in our view, justify that a specific TDM exception be added to the existing legal framework have been explained in the Study and, in summary, are the following:- the present situation regarding the research scientific exceptions in the InfoSoc Directive and in Database Directive is not harmonized;- the exceptions for scientific research can be waived by contract;- there is a controversy as to whether the exceptions apply to “illustrate scientific research” or “for scientific research as such”;- the copyright exceptions in the InfoSoc Directive are limited “solely for scientific research”, which may be seen as excluding projects where, in addition to a scientific research objective, there may be other ancillary objectives;- the two directives impose mentioning the authors’ names and/or the sources, which may not always make sense for data analysis.The main characteristics and contents of this new exception would be:- the exception would only apply where the purpose is mainly (and not “solely”) scientific research;- it would not just serve “to illustrate scientific research” but would apply more broadly in cases of “scientific research”;- it would only apply where justified by non-commercial purposes;- mentioning the sources or the names of the authors of the preexisting materials would not be an obligation but be left to the discretion of the researcher(s);- it would be an exception to the reproduction right (InfoSoc Directive and Database Directive), the adaptation right (both under the Database Direction and as part of the reproduction right in the InfoSoc Directive) and the extraction right (Database Directive);- it would not apply to tools designed for data analysis (which should remain untouched by the exception);- it would not apply if the data analysis output substitutes for the pre-existing works or databases and makes the consultation of these pre-existing elements useless;Study of the legal framework of text and data mining (TDM) 117- it would only benefit users having a lawful access to the data;- it could not be overridden by contractual terms;- it would not be optional for Member States but would be mandatory, so as to ensure a level playing field throughout the European Union.
Policy Implications as Stated By Author
The study explains that an exception covering data analysis would be welcome, inspired from, and contain partly the same conditions than, the scientific research exceptions, but which would have its own characteristics. The study also suggests the two following non-legislative options: (A) facilitate MoUs or other arrangements between stakeholders, and/or (B) adopting an interpretative document.
Coverage of Study
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