Data analytics (TDM)

Over the past decades, and specially over the last years, the »Big Data« phenomenon has become ubiquitous, and one of the main factors for Artificial Intelligence (AI) development and algorithm learning. This is done by big companies as well as researchers by relying on automated computer analysis of structured and unstructured digital information and its processing, so that they extract data, which is in turn transformed into different information or algorithms. This process is called data analytics.

While data analytics technologies are being used broadly in practically all commercial aspects, it is commonly known that they are most useful to researchers and research community, as they support innovations. However, research community can encounter legal issues mainly connected to copyright and related rights when performing data analytics. In some cases, content used for data analytics can be protected by copyright, sui generis database right, or any other related rights, which is why researchers would have to obtain express authorisation for performing data analytics from rightsholders. This is not practically feasible and would significantly encumber research and innovation.
Since the use of protected works for data analytics is of transitory nature and does not unreasonably interfere with rightsholders’ legitimate interests, it is crucial that broad exceptions and limitations of copyright and related rights are put into place for data analytics. Such exceptions bring legal security for research community and can help bridge the gap between different legal frameworks across different legal jurisdictions.
Data Analytics in the new Directive
The need for introduction was recognised also by the European Commission in the new Directive EU 2019/790 on copyright and related rights in the digital single market, where data analytics is called »Text and Data Mining« (TDM).
The new Directive in its Article 2 defines 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.«
The new Directive contains TDM exceptions for research purposes (Article 3) as well as for all other purposes (Article 4).
Article 3
Text and data mining for the purposes of scientific research
1. Member States shall provide for an exception to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, and Article 15(1) of this Directive for reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text and data mining of works or other subject matter to which they have lawful access.
2. Copies of works or other subject matter made in compliance with paragraph 1 shall be stored with an appropriate level of security and may be retained for the purposes of scientific research, including for the verification of research results.
3. Rightholders shall be allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject matter are hosted. Such measures shall not go beyond what is necessary to achieve that objective.
4. Member States shall encourage rightholders, research organisations and cultural heritage institutions to define commonly agreed best practices concerning the application of the obligation and of the measures referred to in paragraphs 2 and 3 respectively.
Article 4
Exception or limitation for text and data mining
1. Member States shall provide for an exception or limitation to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, Article 4(1)(a) and (b) of Directive 2009/24/EC and Article 15(1) of this Directive for reproductions and extractions of lawfully accessible works and other subject matter for the purposes of text and data mining.
2. Reproductions and extractions made pursuant to paragraph 1 may be retained for as long as is necessary for the purposes of text and data mining.
3. The exception or limitation provided for in paragraph 1 shall apply on condition that the use of works and other subject matter referred to in that paragraph has not been expressly reserved by their rightholders in an appropriate manner, such as machine-readable means in the case of content made publicly available online.
4. This Article shall not affect the application of Article 3 of this Directive.
Data analytics and IPI
– in 2019, dr. Maja Bogataj Jančič co-authored Communia’s Guidelines for implementation of the new Directive,
– in the implementation process in Slovenia, IPI helped draft written submissions for educational institutions, libraries and other research institutions on implementations of Articles 3 and 4 of the new Directive – we advocate for:
  1. broad exceptions,
  2. no specific measures regarding secure storage of data,
  3. appropriately short response period for when TDM is technologically blocked,
  4. remote access to analogue materials for the purposes of TDM,
  5. allowing sharing of TDM outputs.
– dr. Maja Bogataj Jančič has, on behalf of Communia, attended all three Sessions of WIPO Conversation on IP and AI, where TDM was discussed as well.
Previous IPI publications regarding TDM:
At IPI, we are also preparing various workshops and webinars about TDM as part of the project financed by the US Embassy in Slovenia through the NGO Small Grants programme.