New statutory limitation for Text Data Mining - a Pyrrhic victory?

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Data Mining - a Pyrrhic victory?Part of an EUDAT series on Legal Issues www.eudat.eu

Content generated by

Pawel Kamocki, IDS Mannheim

V1.0 – July 2014

Table of ContentsI. Text and Data Mining (TDM)

II. TDM Copyright limitationsWhere does the TDM sit in the copyright limitations system?Classification of copyright limitationsRationale behind copyright limitations

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III. Technical Protection Measures (TPMs)

IV. Limitations in international and EU law

V. About EUDAT

Rationale behind copyright limitations

I. Text and data mining (TDM)• the idea has been around since 1950s

• first manual text mining - mid-1980s

• Hearst, Marti A. (1999), Untangling Text Data Mining:‘In this paper, I have attempted to suggest a new emphasis: the use of large

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‘In this paper, I have attempted to suggest a new emphasis: the use of large online text collections to discover new facts and trends about the world itself’.

• MIT Technology Review: 10 Breakthrough technologies 2001

I. Text and data mining (TDM)

Hargreaves Review (2011)

…the law can block valuable new technologies, like text and data mining, simply because those technologies were not imagined when the law was formed.

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imagined when the law was formed.

…there should be a change in rules to enable scientific and other researchers to use modern text and data mining techniques, which copyright prohibits.

II. TDM Copyright limitations

New copyright exemption in the UK1) Where a person has lawful access to a copy of a copyright work, copyright is not infringed where that person makes a copy of the work for the purposes of carrying out an electronic analysis of anything recorded in the work provided that:

(a) it is done for the sole purpose of non-commercial research; and

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(a) it is done for the sole purpose of non-commercial research; and(b) the copy is accompanied by sufficient acknowledgement (unless this

would be impossible for reasons of practicality or otherwise).(2) Any dealing with a copy made pursuant to section (1) for a purpose other than the purpose referred to in subsection (1) is an infringement of copyright and where such a copy is permanently transferred to another the copy shall be treated as an infringing copy.(3) To the extent that the term of a contract purports to restrict or prevent the doing of any act which would otherwise be permitted by this section, that term is unenforceable

-s. 29A CDPA (entry into force: June 1 2014)

II. Where does the TDM sit in the copyright limitations system?

originality requirement

Copyright ONLY protects

Original works

Usually 70 years after

What belongs to the distribution

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idea/expression dychotomy

TDMis on the border of

the copyright system

Copyright ONLY protects

Expressions

years after the death of the author

distribution chain of copyrighted products

20 copyright limitations… but there are few exceptions:

II. Classification of copyright limitations• Statutory exemptions, e.g. citation

(authorization-free, remuneration-free)

• Statutory licenses, e.g. private copy (authorization-free, with remuneration)

• Compulsory licenses, e.g. in anti-trust cases

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• Compulsory licenses, e.g. in anti-trust cases (forced authorization, with remuneration)

• Mandatory collective administration, e.g. cable retransmission (forced authorization, with remuneration)

after L. Guibault (2002), Copyright Limitations and Contracts

II. Rationale behind copyright limitations• To protect constitutional rights

(freedom of speech), e.g. citation • To regulate industry practice and

competition, e.g. press reviews• To disseminate knowledge, e.g.

research exception

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research exception• To respond to market failure, e.g.

cable retransmission

after L. Guibault (2002), Copyright Limitations and Contracts

II. Rationale behind copyright limitationsTo protect the Products for the research and educational use of Authorized Users, automated searches against ProQuest’s systems are not permitted with the exception of nonburdensome federated search services. Data mining is prohibited.

Linguistics and Language Behavior Abstracts (LLBA), Terms & Conditions, s. 6b

To protect the Products for the research and educational use of Authorized Users, automated searches against ProQuest’s systems are not permitted with the exception of nonburdensome federated search services. Data mining is prohibited.


Text mining access is provided to subscribers for non-commercial purposesAccess is via the ScienceDirect APIs onlyText mining output adheres to the following conditions:


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Text mining output adheres to the following conditions:1. Output can contain "snippets" of up to 200 characters of the original text2. Licensed as CC-BY-NC3. Includes DOI link to original content

Elsevier ’s Terms and Conditions of Text and Data Mining



Institutional Licensees and/or Authorized Users (as defined in the JSTOR Terms and Conditions of Service) may use Data for Research to perform research activities involving computational analysis rather than for purposes of understanding the intellectual meaning of such content…

JSTOR, Terms and Conditions for Use for Journals, Plants…, s. 2.3



II. Rationale behind copyright limitationsTo protect the Products for the research and educational use of Authorized Users, automated searches against ProQuest’s systems are not permitted with the exception of nonburdensome federated search services. Data mining is prohibited.


To protect the Products for the research and educational use of Authorized Users, automated searches against ProQuest’s systems are not permitted with the exception of nonburdensome federated search services. Data mining is prohibited.




It is possible to introduce exceptions that are not overridable by contracts!

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e.g. art 8 Database Directive;see also: new s. 29A (3) CDPA

III. Technical Protection Measures (TPMs)

It is illegal to circumvent TPMs!

Member States shall provide adequate legal protection against the circumvention of any effective technological measures. (art. 6 Copyright Directive)

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• How does it relate to copyright limitations?

Copyright limitations are a shield, and not a sword!

In 2008 the French Court of cassation held that the private copy exception did not entitle the users to circumvent TPMs in order to make a private copy (Mulholland Drive case, June 19 2008)

IV. Limitations in international and EU law (1/4)international conventions

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the

Three-step test (Berne Convention)

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work and does not unreasonably prejudice the legitimate interests of the author.

-art. 9(2) of the Berne Convention on the Protection of Literary and Artistic Works

IV. Limitations in international and EU law (2/4)international conventions Three-step test (Berne

Convention)

EU law Closed list of possible limitations in the Copyright Directive 2001

This Directive provides for an exhaustive enumeration of exceptions and limitations-recital 32 of the Copyright Directive 2001This Directive provides for an exhaustive enumeration of exceptions and limitations-recital 32 of the Copyright Directive 2001

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-recital 32 of the Copyright Directive 2001

(…) 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-research exception in art. 5(3)(a) of the Directive

-recital 32 of the Copyright Directive 2001

(…) 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-research exception in art. 5(3)(a) of the Directive


Convention)


national lawInternal hierarchy of norms (e.g. superiority of the Constitution)

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superiority of the Constitution)


Convention)


national lawInternal hierarchy of norms (e.g. superiority of the Constitution)

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superiority of the Constitution)

Little room for new exceptions!

V. About EUDAT

a pan-European initiative building a sustainable cross-disciplinary and cross-national data infrastructure providing a set of shared services for accessing and preserving research data

EUDAT is...

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supporting multiple research communities by working closely with them to deliver these technical services as part of the EUDAT Collaborative Data Infrastructure (CDI)

V. About EUDATA truly pan-European Infrastructure

Research CommunitiesNational Data CentresTechnology Providers

Offering permanence,

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general data centrescommunity centres representing all the associatedcommunity data centres

Offering permanence, persistence, reliability and

long term solutions

V. About EUDATThe EUDAT services suite

www.eudat.eu

Contact us for more information [email protected]

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Content generated by

Pawel Kamocki, IDS Mannheim, [email protected]

Contact us for more information [email protected]

Data & Analytics

New statutory limitation for Text Data Mining - a Pyrrhic victory?