The main difference between the two exceptions is that the research exception (Article 3) allows researchers affiliated to public interest organisations to keep a copy of the information they mined, and this cannot be prevented by contract or technical protection measures. The second exception (Article 4), which can be enjoyed by anyone at all, only allows data analytics to be performed on content that rights holders permit mining to be undertaken on.
These new mandatory exceptions have the potential to support Big Data and Artificial Intelligence (AI) in Europe. However a poor implementation in national law could severely hamper the ability of beneficiaries of the exceptions to undertake text and data mining.
What is text and data mining? Article 2(2) of the DSM Directive defines text and data mining (TDM) as “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.”
Big Data is increasingly ubiquitous, and is used by many different players from large companies, individuals through to the research sector. The core of Big Data, which is also one of the fundamental facets of Artificial Intelligence (AI), is the ability for computers to analyse and extract information from structured and unstructured datasets in response to a particular algorithm based instruction or query. This is often referred to as “text and data mining” in a legal context, or more widely “data analytics”.
According to the European Commission funded Future TDM report “Trend Analysis, Future Applications and the Economics of TDM”, European based data analytics can be expected to grow to a value of $10.3 billion by 2021. Given the ubiquity of data mining, particularly in the US (which shows significantly higher exploitation levels of data that in Europe), for reasons of international competitiveness the European legislature decided in 2016 to introduce new copyright limitations and exceptions to allow EU-based organisations to benefit lawfully from this new technology.
Initially in 2012 the European Commission intended to introduce a licence-based solution for text and data mining under an initiative known as “Licences for Europe”. However upon further investigation, the view of the Commission changed as it realised that licensing would encumber the growth of Big Data in Europe. In 2016 to support innovation, economic growth and research competitiveness the Commission proposed a limitation and exception for individuals and organisations who wish to undertake text and data mining for the purposes of research.
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