Let’s begin with the analysis of the “data analysis for non-commercial research exception“.
The UK government would like to amend the UK Copyright Act so that it is no more an infringement of copyright:
- for a person who already has lawfully a right to access to a copy of a copyright work (whether under a licence or otherwise);
- 2. to make a copy the work;
- for the purpose of carrying out an electronic analysis of anything recorded in the work (= as part of a technological process of analysis and synthesis of the content of the work);
- for the sole purpose of non-commercial research (the copy made for these purposes may not be distributed or used for any purpose other than non-commercial research);
- the copy must be accompanied by sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise) (we must indicate the source unless this turns out to be impossible).
Any dealing with a copy made pursuant this exception for a purpose other than non-commercial research is an infringement of copyright. Moreover where such a copy is permanently transferred to another the copy shaal be treated as in infringement copy also.
Under this exception, a licence governing access to a work will not be able to prevent or restrict use of the work in accordance with this exception.
However the licence may impose conditions of access to the licensor’s computer system or to third party systems on which the work is accessed.
Therefore this exception will not prevent a publisher from applying technological measures on networks required in order to:
- maintain security or stability or
- 2. from licensing higher volumes of access to research outputs at an additional cost.Following the UK government, this exception is permitted by Article 5.3.a of the copyright directive.
This exception is also called the data mining exception.
Following the UK Government, this exception would be permitted under 5.3.a exception of the 2001 Directive:
“5.3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;”
Is data mining a “use” in the meaning of 5.3.a?
If yes, it is a broad interpretation of this word. Everything could so be a “use” if it is:
- for the sole purpose of illustration for teaching (note that “illustration for teaching” is not mentioned in the UK proposal of modification – on purpose or a governmental omission?) or scientific research;
- and to the extent justified by the non-commercial purpose to be achieved.
And I don’t really think that the European legislator of 2001 had the data mining exploitation in mind in writing the words of the 5.3.a. exception. That possibility didn’t even exist at that time.It brings me to the real problem: can we construe the wording of 2001 following our nowadays experience and technological developments or are we obliged to still see the exception written in 2001 with the meaning of that year? Can we include in the interpretation of an exception written more than ten years ago bearing in mind our demands of today? Can we accept that the data mining exception falls under the 5.3.a?
If yes, it has to be the case for every country which has implemented the 5.3.a possibility of the 2001 Directive. Even if it is not clear following the reading of those other regulation.
The UK modification will have pan European consequences.We see that the important condition of this data mining exception is that it has to be done “for the purpose of carrying out an electronic analysis of anything recorded in the work“.
It has to be as part of a technological process of analysis and synthesis of the content of the accessed work.Again, we see in the legal text no explanation of that expression “for the purpose of carrying out an electronic analysis of anything recorded in the work”.
Will it permit Google to do its electronic analysis of books in order to correctly implement them in its Google Books Database or even to correctly index them in its Google Search functionality?
Note that before doing that Google must have a lawfully access to the work, to the books. Maybe this could prevent Google to scan the books for its functionalities without the authorisation of publishers… Moreover, the electronic analysis has to be done for a non-commercial purpose. And I don’t really think that Google does its business for free…
One more thing.I always had difficulties with exceptions including the expression “for non-commercial purpose”. When are we confronted with non-commercial purposes and when do commercial uses begin? It’s really a tricky distinction. The border between the two uses is very small. It can be very difficult to distinct the differences. And so you could introduce by the window uses you don’t want.
As I will advice for the other proposals for new exceptions, we have to be very careful with that kind of texts.
If it is here to purely facilitate works of researchers for non-commercial purposes, we can find out (at the end of the day) that ok it is permitted by 5.3.a of the 2001 Directive.
But, and believe me or not, you will see that Google will grap this new text in order to try to legalize its Google Books and Search functionalities. He will say that those functionalities are for non-commercial purposes (because we don’t pay Google to use it and because it is for the wellness of mankind (the freedom of expression usual Google judicial defence) and that because the work is already in the internet, he already has a lawful access to it.
By Axel Beelen