science europe guibault27202015

Is Europe falling behind in data mining?Lucie Guibault, Brussels, 27 October 2015

THE PROBLEM?

TDM involves access to and usage of content (articles, sounds, images and data) in bulk which may infringe IP rights

Institute for Information Law - IViR 2

The law

Copyright Broad rights of reproduction & making available Question: is every technical reproduction also a

reproduction in the sense of copyright law? Sui generis Database right

Right of extraction and re-utilisation


Sui generis Database right

Case C202-12, Decision 19 December 2013 (Innoweb v. Wegener)

Dedicated meta search engine infringes database right since it constitutes “re-utilising” of the “whole or a substantial part” of a database.


Educational use and research exception (optional)

(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved;

One relevant exception

1 May 2023 Institute for Information Law - IViR 5

Case C-30/14 Ryanair Ltd v PR Aviation BV (15 January 2015)“the legal protection of databases is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.”

Added difficulty: Ryanair Decision


The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014


United States of America Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 91

(2d Cir. 2014). Google Books vs. Authors’ Guild (16.10.2015)

Fair Use in Israel, South Korea, Singapore, Specific exception in Japan

Elsewhere in the world


http://www.ca2.uscourts.gov/decisions/isysquery/b3f81bc4-3798-476e-81c0-23db25f3b301/1/doc/13-4829_opn.pdf

Line of demarcation almost impossible to make “(...) The Supreme Court reversed on this very point,

observing that “Congress could not have intended” such a broad presumption against commercial fair uses, as “nearly all of the illustrative uses listed in the preamble paragraph of § 107 . . . are generally conducted for profit in this country.”

“we see no reason in this case why Google’s overall profit motivation should prevail as a reason for denying fair use over its highly convincing transformative purpose, together with the absence of significant substitutive competition, as reasons for granting fair use”.

Commercial vs. Non-Commercial Research


Modify the legal framework to allow acts of text and data mining for purposes of scientific research

THE SOLUTION?


TWO-TIER IP SOLUTION

Copyrighto Exclusion from reproduction

right (normative approach to protection – TDM not part of right); or

o Exception to reproduction right (TDM not an infringement)

Database right o Repeal the Database

Directive; oro Exclusion from extraction

right (hardly arguable re Innoweb case); or

o Exception to extraction right


Issues to consider in IP law Commercial / Non-commercial use Making available/re-utilisation of results Make provision mandatory

In the law of the Member States In respect of technological protection measures In respect of contractual agreements

Institute for Information Law - IViR

“Lawful use” is broader than “publisher’s licensed use” – Enron court documents, Twitter

Multiple licensing terms = risk of incompatibility = high transaction costs

Aftermath of Ryanair decision for science Beware of contractual lock-up of non-protected

items = huge public policy issue!

Issues to consider in licensing


Ongoing Research


For more information

Lucie GuibaultInstitute for Information Law

University of [email protected]

15Institute for Information Law - IViR