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What’s new in the Directive on Copyright in the Digital Single Market

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[This article was initially published in the ELRC+3 Newsletter on April 24, 2019]

1.Text and data mining exceptions (articles 3 and 4)

As per article 2(2), text and data mining (TDM) is defined as “any automated analytical technique aimed at analyzing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations”. The Directive provides for two exceptions for TDM: one mandatory (will be the same in all EU Member States) and one optional (Member States do not have to implement, or can implement a limited version thereof).

a) Mandatory TDM exception

Research organisations (only non-commercial or public, see article 2(1)) and cultural heritage institutions (libraries, museums and archives) can copy material that they have lawful access to, in order to carry out TDM for scientific research purposes. The copies made in the process can be stored (with an appropriate level of security) for research purposes (including verification of results).

Right-holders can apply technological protection measures to prevent TDM of their content, but only to ensure the security and integrity of their networks and databases.

b) Optional TDM exception

This optional exception has potentially unlimited beneficiaries, and TDM can potentially be performed for any purpose. Reproductions made in the process can potentially be retained for as long as necessary. No sharing is allowed.

This exception only applies to content for which right-holders have not expressly reserved the right to mine (“mineable by default”). In other words, it is enough for the right-holder to indicate that she/he does not allow for her/his content to be mined under this exception to be able to lawfully prevent such acts.

2. Extended collective licensing (article 12)

Member States may allow collective management organisations (e.g. SACEM, VG Wort) to grant licenses (limited to the territory of the Member State) for use of all the works in their sector of activity (especially when seeking permission from individual authors would be too costly and impractical). Such a mechanism already exists in Scandinavian countries, where research institutions use it with a lot of success to negotiate access to data.

3. New exclusive right concerning online uses of press publications (articles 15 & 16)

Publishers of press publications will have a new exclusive right to prevent online uses of their publications by “information society service providers” (such as news aggregators). The right does not affect private or non-commercial uses by individuals. It does not apply to mere hyperlinking, and to the use of individual words or “very short extracts”. It does not in any way affect copyright and other related rights.

This right expired two years after the publication. Scientific and academic periodicals are excluded (article 2(4)).

The impact of this new right on the Language Technology community will be very limited, but it is important to mention it here, as it can easily be misinterpreted as granting free access to newspaper articles two years after their publication.

4. New rules concerning liability of online content-sharing service providers (articles 17 and ss.)

Online content-sharing service providers (OCSSP) are those who for profit-making purposes provide services whose main or one of the main purposes is to store and give the public access to a large amount of content uploaded by their users (article 2(6)). Not-for profit encyclopedias (Wikipedia), not-for-profit educational and scientific repositories (ArXiv), open source software developing and sharing platforms (GitHub), online marketplaces and some cloud services are excluded.

OCSSP need licenses from right-holders to provide their services (despite the fact that content is uploaded by users). Otherwise, they are liable for copyright infringement, unless they demonstrate that they made their best efforts to obtain a license, prevent access to infringing content and in any event acted promptly to disable access to the content upon receiving a notice from right-holders.

A license given to an OCSSP automatically grants users of the service rights to use the content for non-commercial purposes.

A license is not needed if the uploaded content was generated on the basis of the quotation exception, or the caricature/parody/pastiche exception (no research exception).

“Young” and small OCSSP (active for less than 3 years and with annual turnover of less than 10 million EUR) are subject to less strict obligations.

Right-holders are entitled to “appropriate and proportionate” remuneration for the use of their content by OCSSP. At least once a year, the OCSSP sends them information about the uses of their content, in particular regarding the modes of exploitation and the generated revenues. This information should also cover any uses made by sub-licencees.

The new Directive will enter into force on the twentieth day following its publication in the Official Journal (which will happen any day now). After that, the Member States will have 24 months to implement it in their national laws.