The focus of the public debate in relation to the new EU Directive on Copyright in the Digital Single Market (the “Copyright Directive”) to date was on the subject of memes and gifs and whether their publication would still be allowed under the new laws. However, the Copyright Directive brings in a number of other changes, some of which will be of particular interest to UK-based researchers and creatives.
What Is Changing?
The Copyright Directive, which has recently been adopted by the European Parliament (“EP”), aims to modernise copyright rules for the digital age. In particular, through the Directive, the EU hopes to achieve:
- more cross-border access to content online;
- wider opportunities to use copyright protected materials in education, research and cultural heritage; and
- a better functioning copyright marketplace, providing in particular better remuneration for creatives.
The current text of the Copyright Directive (as adopted by the EP) is now set to be discussed and approved by the Member States at the Council meeting today. Once approved, it will require implementation into national laws of the Member States (including the UK if it remains subject to EU law throughout the implementation period) within 2 years from the publication of the Copyright Directive in the official journal of the EU.
The Copyright Directive has not been without its critics, with attention being focused on the text of Article 111 (providing for a new right of the press relating to the digital use of its publications) and Article 132 (which imposed obligations on internet service providers (“ISPs”) that store large amounts of content uploaded by users). These provisions have survived in the final adopted text, but have been subject to significant amendments. We will look into them in more detail later on in the article.
What appears to have escaped the headlines is the new exemption relating to text and data mining which aims to provide legal certainty to members of the research community, such as higher education institutions and hospitals, as well as cultural heritage institutions such as libraries, archives and museums.
We will therefore start with having a closer look at Article 3 and its consequences to the research community in the UK and throughout the EU.
What Is Text and Data Mining (“TDM”)?
TDM is the automated process of analysing large amounts of existing text or data with a view to gain new knowledge, to include discovering trends, patterns or other useful information that a human analyst would not be able to detect through a standard review process.
In the context of medical research, TDM may be used for example to analyse large swathes of medical data and scientific papers to discover relationships between drugs and adverse events, or research hereditary diseases.
How Does Copyright Affect TDM?
When an individual studies material for scientific research purposes, he or she is likely to read them before noting down key issues with a view to spotting trends, none of which infringes the author or publisher’s copyright.
Conversely, when TDM is employed, the technology doesn’t just ‘read’ the materials, it takes copies of them and transforms them into a consistent form in a process called “normalisation”, to ensure that the text and data can be dependably reviewed to discover patterns, which typically involves acts protected by copyright, or database right in relation to the extraction of information from databases.
What does the Copyright Directive Say About TDM?
It was previously unclear whether scientific research organisations employing TDM processes would be doing so in breach of third parties’ copyright, unless they obtained right holders’ authorisation. The EU wanted to provide certainty to such organisations, as it recognised that research is increasingly carried out with the assistance of digital technology, and that the use of TDM supports innovation which in turn stimulates progress to the benefit of society.
This goal appears to have been achieved through the introduction of a mandatory exemption in Article 3 of the Copyright Directive in relation to TDM for research organisations and cultural heritage institutions, in relation to “natural sciences and human sciences”, with regards to content to which they have lawful access.
The exemption will therefore apply in respect of research use of TDM by organisations and cultural heritage institutions where:
- access to content is based on an open-access policy;
- the content is accessed through contractual arrangements, such as subscriptions; or
- the content is freely available online.
Entities benefitting from this exemption do however need to be careful with how they store any copies of materials produced through the use of TDM, as the Directive requires such copies to be stored in a “secure environment”, although further specific requirements are likely to be developed through consultations with key stakeholders.
Direct Liability of ISPs for Copyright Infringement
With the ever-increasing speed of developments in the digital world, it has become necessary to change the existing copyright laws to ensure that the rights of copyright holders are adequately protected, and to ease the route to their enforcement.
Following the introduction of the Copyright Directive, companies such as Google, Facebook, Twitter and YouTube will become directly liable immediately for content uploaded to their online platforms by users. This, in turn, will enhance artists’ and news publishers’ chances of negotiating better financial terms for use of their works by large internet platforms and online news aggregators.
However, liability of certain non-commercial platforms (such as Wikipedia) will be excluded from the scope of the Directive and the obligations on start-up platforms will also be less stringent than that of tech giants.
Freedom of Expression
The aim of the Copyright Directive is also to balance authors’ rights with freedom of expression. The new provisions ensure that works protected by copyright can be uploaded online for the purposes of quotation, review, caricature, criticism, pastiche or parody. This exemption includes memes and gifs, which no doubt will provide some reassurance to avid Twitter users.
Whilst the online tech giants and other stakeholder groups raised concerns in respect of the effect that the Copyright Directive may have on freedom of expression online, our view is that it is unlikely to be the case. The Copyright Directive is a positive, progressive and necessary measure that is likely to be of great assistance to those operating within the innovation-based and creative industries sectors. For too long their rights in copyright works have not been sufficiently protected and were not straightforward to enforce in the digital world, particularly in cases involving large tech companies.
We also welcome the provisions recognising the importance of new technologies, such as TDMs, used in innovation-based sectors which ensure that any such use is lawful. These provisions will undoubtedly further support and encourage digital developments in the research world.
For further advice with regards to copyright infringement and intellectual property rights, please contact our specialist Intellectual Property Dispute Resolution team.
1Article 15 in the final text of the Copyright Directive
2Article 17 in the final text of the Copyright Directive
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