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Draft proposal for a directive on copyright in the Digital Single Market

The Union Directives which have been adopted in the area of copyright and related rights provide for a high level of protection for rightholders and thereby create a framework wherein the exploitation of works and other protected subject-matter can take place. This harmonised legal framework contributes to the good functioning of the internal market; it stimulates innovation, creativity, investment and production of new content, also in the digital environment. The protection provided by this legal framework also contributes to the Union’s objective of respecting and promoting cultural diversity while at the same time bringing the European common cultural heritage to the fore.

Rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited. New business models and new actors continue to emerge. The objectives and the principles laid down by the EU copyright framework remain sound. However, legal uncertainty remains, for both rightsholders and users, as regards certain uses, including cross-border users, of works and other subject-matter in the digital environment. This directive provides for rules to adapt certain exceptions and limitations to digital and cross-border environments. It also provides for measures to facilitate certain licencing practices as regards the dissemination of out-of-commerce works and the online availability of audiovisual works on video-on-demand platforms with a view to ensuring wider access to content. Finally, to achieve a well-functioning marketplace for copyright, this Directive provides for rules on rights in publications, on the use of works and other subject-matter by online services storing and giving access to user uploaded content and on the transparency on authors’ and performers’ contracts.

In the fields of research, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current EU rules on exceptions and limitations. In addition, the optional nature of exceptions and limitations provided for in Directives 2001/29/EC, 96/9/EC and 2009/24/EC in these fields may negatively impact the functioning of the internal market. This is particularly relevant as regards cross-border uses, which are becoming increasingly important in the digital environment. Therefore, the existing exceptions and limitations in Union law that are relevant for scientific research, teaching and preservation of cultural heritage have to be reassessed in the light of these new uses. There is a need to introduce mandatory exceptions or limitations for uses of text and data mining technologies in the field of scientific research, illustration for teaching in the online environment and for preservation of cultural heritage. For uses not covered by the exceptions or the limitations provided in this directive, the exceptions and limitations existing in Union law will continue to apply. When required, this Directive provides for technical adaptions to directives 96/9/EC and 2001/29/EC.

The exceptions and the limitations set out in this directive seek to achieve a fair balance between the rights and interests of authors and other rightsholders on the one hand, and of users on the other. They can be applied only in certain special cases which do not conflict with the normal exploitation of the works or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholders.

New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text and data mining, faster than in done by individuals. Those technologies allow researchers to process large amount of information to gain new knowledge and discover new trends. Whilst text and data mining technologies are prevalent across the digital economy, there is widespread acknowledgement that text and data mining can in particular benefit the research community and in so doing encourage innovation. However, in the Union, research organisations such as universities and research institutes are confronted with legal uncertainty as regards their ability to perform text and data mining of content. In certain instances, text and data mining may involve acts protected by copyright and/or by the sui generis database right, notably the reproduction of works or other subject-matter and/or the extraction of contents from a database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightsholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required.

Union law already provides certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, these exceptions and limitations are optional and not fully adapted to the current use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access licences, the terms of the licences may exclude text and data mining. As research is increasingly carried out with the assistance of digital technology, there is a risk that the Union’s competitive position as a research area will suffer unless steps are taken to address the legal uncertainty for text and data mining.

This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. Such an exception would seek to ensure that text and data mining can be carried out even if it requires the reproduction of works, or other subject-matter, or of part thereof; or the extraction of the whole or a substantial part of the contents of a database protected by the sui generis right. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnerships. The term “scientific research” within the meaning of this directive should cover both the natural sciences and the human sciences.

Research organisations across the EU encompass a wide variety of entities and include those whose primary goal is to conduct scientific research or to do so together with the provision of educational services. Due to the diversity of such entities, it is important to have a common understanding of the beneficiaries of the exception. Despite different legal forms and structures, research organisations across Member States generally have in common that they act either on a not for profit basis or in the context of a public-interest mission recognised by the State. Such a public-interest mission may, for example, be reflected through public funding or through provisions in national laws or public contracts. At the same time, organisations upon which commercial undertakings have a decisive influence, notably because of structural situations such as their quality of shareholders or members, which may result in them enjoying preferential access to the results of the research, should not be considered research organisations for the purposes of this Directive.

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