Caspers, M.

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International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Why a Copyright Exception Should Go Beyond TDMCaspers, M.Publication date2016Document VersionFinal published versionLicenseCC BYLink to publicationCitation for published version (APA):Caspers, M. (Author). (2016). Why a Copyright Exception Should Go Beyond TDM. Webpublication or website, FutureTDM. http://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:09 Mar 2023Why a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]   It is a basic principle of copyright law that ideas are not protected. Whatcopyright does protect is the original expression of those ideas. It allowsother people to use the information incorporated in a certain expressionto re-use it and repackage it in an own, original way. It is this idea-expression dichotomy that seeks to prevent ideas from beingmonopolised by authors of works, while simultaneously promoting thefree dissemination of knowledge through society. From this principle,one would expect that every act carried out with or on a copyright work Share on Facebook Tweet on Twitter SEARCHLATEST POSTSWhat is Text and DataMining?  FutureTDM - February 23, 2016 0Home   Blog   Legal & Policies   Why a Copyright Exception Should Go Beyond TDMBlog Legal & PoliciesWhy a Copyright Exception Should Go BeyondTDM  2863  By Marco Caspers  - May 2, 2016   0BLOG  AUTHORS  KNOWLEDGE BASE  LIBRARY  EVENTS  Sign in / JoinWhy a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]of which the purpose is only to extract the knowledge underlying it,would not be relevant from a copyright perspective and therefore not fallunder any exclusive right of the author.As reasonable as that sounds, it is not the case. At least, not as ageneral rule. It is true that, generally, the mere act of reading, watching,or listening by a natural person does not infringe any copyright. Forexample, once you acquire a book, no one is entitled to prohibit you toread it - not under copyright law - regardless of the purpose you arereading it for. However, under the current copyright acquiscommunautaire, the same is not necessarily true for knowledgedisseminated in digital form, such as the results of text and data mining(TDM) activities. And the reason is simple: for a computer to ‘read’ awork, the making of temporary copies - e.g. into the RAM - isindispensable to this activity. Moreover, in order for a user to retrieve theworks prior to the analysis, it is often necessary to make reproductionsthereof. For example, the miner may have to copy a text corpus from aserver to its own terminal equipment to carry out the analysis. All saidreproductions are covered by the reproduction right as provided underArticle 2 of the Copyright Directive (2001/29/EC) and may therefore beprohibited by the rights owners.Of course, this scenario looks an awful lot like a temporary reproductionthat Article 5(1) of the same directive should exempt from the rightowner’s control. However, the criteria of this provision are either toorestrictive or uncertain to be consistent with the principle that knowledgeis not protected. Machine reading will generally not constitute “atransmission in a network between third parties by an intermediary” andit is rather debatable what must be understood by “to enable a lawfuluse”. From Recital 33 of the Copyright Directive, it seems that thelegislator’s main concerns related to the lawful use of the work by theend user, in particular browsing and caching on the Internet.However, in the case of machine reading as we refer to, there is no useof a work by the user, since the latter is in no stage confronted with theexpression of work itself. Moreover, the requirement of transient copiesnot having any “independent economic significance” is irrelevant in theWhy a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]context of the idea-expression dichotomy: ideas are not protected,regardless of the purpose for which they are used.The European legislator seems to have done a better job as regards theidea-expression dichotomy in relation to the copyright protection ofcomputer programs. Although computer programs are protected undercopyright law, Article 5(3) of the Software Directive (2009/24/EC) permitsthe so-called ‘black box analysis’ of that software. It entitles the personwho has the right to use the program to “observe, study or test thefunctioning of the program in order to determine the ideas and principleswhich underlie any element of the program if he does so whileperforming any of the acts of loading, displaying, running, transmitting orstoring the program which he is entitled to do”. Such line of reasoningcould be extended to copyright works in general, where the lawfulaccess to works should imply that reproductions are allowed to be madefor the sole purpose of determining the ideas behind a work.Some conditions may be necessary to ensure that the interests of rightowners are not unreasonably affected. Fortunately, the SoftwareDirective provides some inspiration on this point as well. The exceptionfor the decompilation of software under Article 6 is coupled with somecriteria, from which necessary conditions can be formulated.Accordingly, TDM and any form of extraction of knowledge from worksby machines should be exempted when:those   acts   are   performed   by   the   licensee   or   by  another   person  having  a  right  to  use  a  copy  of  a work,  or  on  their  behalf  by  a  person  authorised  to  do so (cf. Article 6(1)(a));those  acts  are  confined  to  the  parts  of  the  original work  which  are  necessary  in  order  to  extract theknowledge, insofar as this can be determined (cf. Article6(1)(c)); and ifno original expression of the works is preserved in theoutput of those acts, unless this is permitted by law orauthorisation by the author.Why a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]However, a work may not be:used  for  goals  other  than  to extract the knowledge fromthe work (Article 6(2)(a));given  to  others,  except  when  necessary to extract theknowledge from the work and other will not use the work forother purposes than described under the first point (Article6(2)(b); andAs we have learned from the landscape of optional exceptions under theCopyright Directive, which are implemented in various ways, a generalTDM or ‘knowledge extraction’ exception should be made mandatory toensure its effectiveness. For that purpose, it may also be necessary toovercome that users are prevented in other ways from extractingknowledge from works. For example, through the application of TPMs tothe works, users may be technically excluded from acts that they arepermitted to carry out under copyright law. Article 6(4) of the directivecurrently already obliges Member States to take appropriate measuresto ensure that users may benefit from the enumerated copyrightexceptions, in the absence of voluntary measures by copyright holders.Nonetheless, it appears from a survey conducted by FutureTDM amonglegal correspondents in different Member States that, according tonational implementations, users must often go through administrativeprocedures in order to obtain necessary access. One way to ensure thebenefits of the copyright exception as discussed in this blog post wouldbe to only prohibit the distribution of means to circumvent TPMs, and notthe act of circumventing itself, as under the TPM regime of the SoftwareDirective (see Article 9(1)(c)).Copyright law reform is not an often recurring activity in the Europeanlegislating process. New or revised provisions should therefore be well-thought-out and future proof. Correspondingly, a TDM exception shouldalso take into account the future ways to extract knowledge from worksin ways that are irrelevant from a copyright perspective. Merelyfocussing on TDM is only looking at the trends in the past years, butdoes not take into consideration similar activities in the future. The aboveproposed exception would do just that by providing the legislator anWhy a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]Previous articleEuropean Data Forum 2016Next articleTDM for Scientific Publications:Venues and Ideasinstrument to streamline the copyright regime with its basic principle: thefree use of ideas and knowledge. As radical as it may sound, all theingredients are already in the European copyright framework.This post is authored by Marco Caspers (UvA) & Lucie Guibault(UvA).Image Credit: CC0 |Pixabay   Marco Caspershttps://www.uva.nl/en/home NO COMMENTS Share on Facebook Tweet on Twitter Why a Copyright Exception Should Go Beyond TDM - FutureTDMhttps://www.futuretdm.eu/blog/legal-policies/copyright-exception-tdm/[30-9-2020 17:51:10]LEAVE A REPLYLog in to leave a commentor login with:   The platform is a result of the FutureTDMproject, seeking to improve Text and DataMining uptake in the EU.Project WebsiteHorizon 2020 research and innovationprogramme under grant agreement No665940. EC EuropeThe FutureTDM platform is in continuousimprovement. Follow us to find out aboutour latest developments.Twitter ChannelThe Open Knowledge Library of this platform contains the main outcomes of theFutureTDM project licensed under a Creative Commons Attribution 4.0International License (CC-BY) to be adapted with appropriate credit.Contact  ImprintFutureTDM Platform

Why a Copyright Exception Should Go Beyond TDM

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Why a Copyright Exception Should Go Beyond TDM

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