Download 1. intellectual property was not designed to regulate the free flow of

Libraries and European Copyright Reform
Jonas Holm
Legal counsel, Stockholm University
Chair, LIBER Working Group on Copyright
[email protected]
What do we mean by copyright protection?
 Economic Rights:
the exclusive right to..






 Moral rights:
included in civil law and some
common law jurisdictions
Produce copies and reproductions
 Right of attribution
Import or export the work
 Right to the integrity of the work
Create derivative works
Perform/display the work publicly
Display/transmit by TV and radio
 Sui generis right:
Sell, license or transfer these right
to others
 Database protection
The Berne Convention
 Require its signatories to recognize the copyright in works
of authors from other signatory states
 States minimum protection terms
 Includes moral rights
 Fair use
 Three-step-test:
1) Signatory countries can permit exceptions for reproduction
2) Provided such reproduction don’t interfere with the normal exploitation
3) And does not unreasonably prejudice the legitimate interests of the authors
How does this apply to Text and Data Mining
(content mining, DM, TDM)?
 Most legal scholars agree that legal consent from right
holders is required for TDM-like activities on input works
currently protected by copyright
 TDM activity is considered a disposition within the zone of
exclusivity for the legal right holder in a work
 Mining would then require licensing clearance procedures
for each scientific projects
 Such licensing negotiations could be burdensome and
costly
The EU Legal Framework on Copyright











Satellite and cable directive 1993
Database directive 1996
Infosoc directive 2001
Directive on the resale right 2001
Directive on the enforcement of intellectual property rights 2004
Directive on rental and lending rights 2006 (modified)
Directive on the legal protection of computer programs 2009 (modified)
Directive on term of protection 2011
MoU on Out-of-commerce works 2011
Orphan works directive 2012
Directive on collective management of copyright 2014
Infosoc directive 2001 (aka Copyright directive)
 Definitions of the exclusive rights granted under copyright
 Contains a number of exceptions to copyright and related
rights:
 Reproduction for private use
 Reproduction by libraries (non-commercial)
 Illustration for teaching and scientific research
 Use for criticism and review
 Use for non-commercial research
 However, these exceptions are not mandatory, and the
implementation varies greatly amongst member states
Database directive 1996
 In addition to the copyright protection offered by the
national copyright regimes, the EU Database Directive
contains legal protection for databases
 … that are considered to be the result of a significant
investment
 Database creators will receive a protection similar to
copyright
 This is called a sui generis right
 Such protection is a barrier to Text and Data Mining (TDM)
 The database protection is specific to the EU and is a
competitive disadvantage for EU researchers
National copyright exceptions rules for TDM
 Exception rules in national copyright regimes facilitates
legal certainty around TDM activity
 Such exception rules rests on the assumption that lawful
right to read a work also implies a lawful right to mine
 With such exception rules, no separate permission for
TDM activity needs to be obtained.
 National exception rules for TDM exists in, among others,
Japan, Israel, South Korea and the United Kingdom
 However, the UK exception rule is for non-commercial
TDM activity only
Fair use and fair dealing
 Countries within the anglo-american copyright system has
fair use or fair dealing provisions in their copyright regimes
that allows for certain activity in works, without consent.
 Fair dealing (Commonwealth countries) is list of specific
actions allowed (TDM activity not included).
 Fair use (United States) has an open ended list with
activities “such as..” – This allows for TDM!
 The Fair dealing provision in Canada is more open ended
and similar to U.S. Fair dealing
How does legal uncertainty affect TDM
research?
 Studies has shown that research publications with TDM
elements are significantly fewer in countries without legal
certainty around TDM than in countries with an exception
rule or fair use
 Apparently, this makes for a competitive advantage for the
American science community compared to the European
counterpart
 Similar studies has also shown that research publications
with TDM elements in Europe has declined since the issue
of legal certainty was raised
Current debate – Market licensing solution?
 In may, the academic publishing community through STM
(The International Association of Scientific, Technical and
Medical Publishers) issued a statement that legal certainty
around TDM activity in Europe already exists
 The STM statement offers a solution through a market
licensing mechanism where permission for TDM activity
can be obtained through licensing negotiations and TDM
infrastructure.
 The academic community has already issued statements
objecting to this solution as insufficient.
Current EU Copyright reform work
- The Digital Single Market
 Digital Single Market Strategy – May 2014
 Impact assessment in June 2015
 Proposal expected in October?
Likely outcome of the Digital Single Market?
2-3-4 of the Exception rules in the Infosoc directive to be
made mandatory
Exception rule for TDM – unclear if for commercial and
non-commercial use?
Not yet specified actions to facilitate cross-border access to
works protected by copyright
LIBER’s work on Copyright Advocacy
 Response to the Commission’s Copyright Consultation 2014
 LIBER wants a copyright exception for Text- and Data Mining (TDM)
that does not differentiate between commercial and noncommercial use
 Copyright exceptions should not be over-ridden by contracts or
technical protection measures
 We call for cross-border solutions for access
 Licensing is not enough!
 The Hague Declaration – Launched May 2015
 Meetings with MEP’s and with Commission officials.
Why do we call this Knowledge
Discovery?
Ultimate goal is to extract high level knowledge
from low level data
Allows analysis across disciplines
“Undiscovered public knowledge” (Swanson)
Identifies patterns in the data to produce new
knowledge
It’s not a new thing, it’s just digital information
makes it a whole lot more powerful and relevant!
“TDM saves lives”
Tools in the armoury of every biologist and
biotecnician
Discover new treatments for diseases e.g.
fish oil for Raynaud’s Syndrome
Controlling malaria outbreaks
Links between gene mutation and cancers
http://arxiv.org/abs/1407.7094
1. INTELLECTUAL PROPERTY
WAS NOT DESIGNED TO
REGULATE THE FREE FLOW OF
FACTS, DATA AND IDEAS, BUT
HAS AS A KEY OBJECTIVE THE
PROMOTION OF RESEARCH
ACTIVITY
2. PEOPLE SHOULD HAVE THE
FREEDOM TO ANALYSE AND
PURSUE INTELLECTUAL
CURIOSITY WITHOUT FEAR OF
MONITORING OR
REPERCUSSIONS
3. LICENSES AND CONTRACT
TERMS SHOULD NOT RESTRICT
INDIVIDUALS FROM USING
FACTS, DATA AND IDEAS
4. ETHICS AROUND THE USE OF
CONTENT MINING TECHNIQUES
WILL NEED TO CONTINUE TO
EVOLVE IN RESPONSE TO
CHANGING TECHNOLOGY
5. INNOVATION AND
COMMERCIAL RESEARCH
BASED ON THE USE OF FACTS,
DATA, AND IDEAS SHOULD NOT
BE RESTRICTED BY
INTELLECTUAL PROPERTY LAW
The Way Forward?
 Commission impact assessment on the Digital Single
Market Strategy – ongoing
 Commission proposal expected in December 2015
- will be debated in parliament and between member
states