The disappointing regulation of the text and data mining exception

Friday, 21 of June of 2019

Once of the novelties introduced by Directive 2019/790 on copyright in the digital single market is the text and data mining exception. The purpose of this exception is to foster innovation in artificial intelligence in Europe. As the European Commission has stated, European firms lagged behind their competitors from China or the USA in this field.

The new exception may certainly help to achieve this objective, but the conditions imposed for companies to benefit from it reduce enormously its effectiveness.

The exception refers to reproductions and extractions for the purpose of text and data mining of works or other subject matters (arts. 3.1 y 4.1). It also extents to the reproduction of those works and subject matters for the purpose of conservation as long as it is necessary for carrying out of scientific research, including for the verification of research results. The storage shall be made with an appropriate level of security (arts. 3.2 y 4.2).

To benefit from the exception, the following conditions need to be met.

First, the exception is only compulsory when the activities of text and data mining have a scientific research purpose, and are carried out by research organisations and cultural heritage institutions (art. 7 in relation to art. 3). In any other case, the right holder can limit or derogate the exception by contract. For instance, this might be case if a company wants to mine text and data for commercial purposes.

Second, to benefit from the exception you must have lawful access to the work or subject matter. This means you must have a license from the right holder.

Third, according to art. 3.3., right holders are “allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject matter are hosted”. While those measures “shall not go beyond what is necessary to achieve that objective”, they may constitute a great obstacle to the exercise of the exception that cannot be solve just by saying that stakeholders shall work together “to define commonly agreed best practices”.

Fourth, in those case where the work or subject matter is protected by a technical protection measure, art. 7.2 refers to Art. 6.4 Directive 2001/29 in relation to the obligation of the right holder to ensure that beneficiaries can enjoy the exception. According to this provision, “in the absence of voluntary measures taken by rightholders, Member States shall take appropriate measures to ensure that rightholders make available to the beneficiary the means of benefiting from the exception where that beneficiary has legal access to the protected work or subject-matter concerned”. To our knowledge, the measures adopted by the Member States in this regard are defective. In Spain, the law does not provide any sanction against the right holder who does not voluntarily grant access to the work or subject matter. The only thing the beneficiary can do is to “make a recourse before civil courts” (art. 197.2 LPI).

The disappointment with the final regulation of the exception accentuates when it is compared with that provided for in other legal systems. In the United States, courts have already stated that text and data mining activities are covered by the “fair use” doctrine. In Japan, the exception does not impose any restriction in relation to the purpose of the activity.

Unfortunately this kind of legislation does not help European firms to catch up with their foreign competitors.