A study on the justification and sufficiency of text and data mining exceptions in the European Union

The European Union has been progressively harmonizing intellectual property throughout the Member States. Most recently, it enacted the Copyright in the Digital Single Market Directive (“CDSM”). The instrument, which entered into force in July 2021, impacts a wide array of copyright topics. One such (very popular) topic is text and data mining (“TDM”).

Text and Data Mining
But what is TDM? According to the CDSM, it is “any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations.” In essence, it is a method to process amounts of text and/or data which are unmanageable by the human mind. Through this method, new and valuable information can be identified among potentially immense amounts of useless information.

One crucial use for TDM is the training of artificial intelligence. Accordingly, the topic has received broad attention, especially as regards the potentially copyright-infringing nature of the method. Prior to the CDSM, uncertainty surrounded this question in the EU.

The CDSM contains two Articles that pertain to TDM. Article 3 provides an exception to copyright infringement in cases where research organisations and cultural heritage institutions reproduce and extract information for scientific research purposes. In addition, they must have lawful access to the copyright-protected content.

Article 4, on the other hand, is a general exception covering the same actions for anyone having lawful access to copyrighted content and engaging in TDM. While the former is a mandatory provision, the latter is of an opt-out nature: rightsholders are free to opt for prohibiting TDM on their works in Article 4 situations. It must be noted that neither of the Articles takes account of the fact that no enjoyment is derived from the copyright-protected works in such situations.

Critique and shortcomings
These complex and narrow Articles have received significant attention in the literature and from stakeholders. Some responses were welcoming, others overwhelmingly critical, while yet others commented cautiously in both directions. Many experts suggested changes from smaller tweaks to larger revamps before the CDSM entered into force. While thus much has been proposed in terms of improving the (then draft) Articles, the end result is less than satisfying.

The new EU approach to TDM is not only restrictive and potentially harmful to scientific progress; it also puts the Union at a competitive disadvantage compared to other technology giant jurisdictions. Japan (non-enjoyment exception), the US (fair use) and the UK (broader statutory provision) all have, to differing extents, more TDM-friendly legal frameworks in place than the EU does. A TDM-friendly approach is necessary to enable EU research actors to vie on equal footing with their competitors abroad, and to ensure that the legislative framework of copyright law remains in accordance with the fundamental notions justifying its existence.

Proposed alternative: non-enjoyment
The TDM Articles of the CDSM are thus in desperate need of revision. It is my view that the best way to address this issue would be to stay true to continental traditions, while learning from what works elsewhere. In this vein, I believe that adopting a Japanese-style exception for non-enjoyment purposes (i.e., no copyright infringement takes place if the work in question is not enjoyed by anyone), spelling out TDM specifically as one such permitted use is the best way forward. This approach builds on the German concept of Werkgenuss, which forms a prerequisite to copyright infringement by limiting infringement to situations where enjoyment of the work at hand takes place. In TDM activities, copyright protected works are not enjoyed and should therefore not constitute an infringement.

Furthermore, this solution would also be true to the philosophical justifications of copyright protection. When surveying the main justifications, one finds little to no reason for extending copyright to TDM or, more generally, to non-enjoyment cases. There are no further incentives for creation by providing a monopoly on TDM (incentive theory). The labour theory warns against wasteful over-appropriation, while the personality theory also does not suggest that expressions of the self could be more successful if a TDM monopoly is granted. Finally, the social planning theory hardly justifies TDM exclusivity in view of the goal of pursuing societal goals through creating and sharing knowledge.

In my paper, A study on the justification and sufficiency of text and data mining exceptions in the European Union, I explore the relevant philosophical justifications, pre-existing exceptions, criticisms, and proposed alternatives to the CDSM TDM Articles. I propose a non-enjoyment exception founded on the concept of Werkgenuss to enable scientific progress and inject flexibility into copyright law for technological developments. This could be, I argue, best implemented by an international agreement and/or by way of a Regulation in the EU. Finally, I illustrate the importance of this discussion through a brief case study of beneficial uses of TDM during the COVID-19 pandemic.