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MEPs have a chance to make copyright law fit for research

Legal protections for text and data mining are needed if Europe is to remain a research leader, says Alea López de San Román.

Copyright is a strong contender to become the most controversial legislative area in the EU. It owes its thorny nature to a combination of technical complexity, impact on daily life, and ability to provoke conflicts of interest between different areas of society.

The latest bout of wrangling began in September 2016, when the European Commission presented its proposal for a directive on copyright in the digital single market. This marked the official beginning of the legislative procedure for the reform of EU copyright. The unofficial battle, however, was already well underway, with authors, publishers, consumers and governments all jostling to see their interests preserved.

In this battle, the League of European Research Universities, together with other research organisations, has made its stance clear. Copyright law is of paramount importance to universities. It determines how we can access, create and use knowledge—knowledge that has often been produced by universities and researchers.

Among Leru’s concerns regarding copyright in the EU, one requires special attention: text and data mining.

Text and data mining is the process of deriving information from the computerised analysis of text or data, offering new ways to discover information and speed up science. They are among many of the ongoing changes in how research is conducted and communicated. The benefits are evident but, as with other developments such as open-access publishing, achieving them requires the right legal framework.

Text and data mining can affect certain rights that fall under copyright. Mining content, for example, involves temporarily reproducing it. These techniques, then, require an exemption from such rights.

First, this exemption has to be mandatory. Otherwise, EU member states will choose whether to include it in national law, leading to a patchwork of regulations and hampering collaborative research. This would be glaringly at odds with the harmonisation sought by EU copyright law and the goal of a digital single market.

Second, both commercial and non-commercial research should be exempted. There is only a thin line between the two, rendering any distinction illusory. Big companies would benefit, but so would small companies and spinouts coming out of universities.

Europe is often accused of being good at basic research but poor at commercialising it. Rules that limit commercial research will not make this situation better, and would violate research commissioner Carlos Moedas’s principle that EU legislation should be innovation-friendly.

Third, the exception should apply to anyone with legal access to the content. The right to read must be the right to mine.

Some publishers are taking advantage of the legal vacuum to gain control over text and data mining. Practices include requiring researchers to seek permission to mine content on a case-by-case basis; preventing mining by blocking internet addresses; allowing mining only for non-commercial research and allowing it only with the publisher’s tools. Some publishers are also looking to charge for text and data mining.

Finally, it should not be possible to override these exceptions with private contractual or technical protection measures, such as those allegedly intended to protect the “integrity” and “security” of the system.

The Commission’s legislative proposal goes halfway to meeting these needs. The introduction of a mandatory exemption not overridable by private contract is to be applauded. However, this is limited to research organisations, including public-private partnerships, and for research purposes. It also allows for publishers to introduce technical protection measures.

As it stands, the directive is a step in the right direction. Now it is up to the European Parliament, which is scrutinising and amending the directive, to complete the journey. A final vote is not expected until late 2017 at the earliest. MEPs have the opportunity and the responsibility to make the copyright directive truly fit for research by including all the above-mentioned exemptions.

If the EU is to remain a global research leader, its legislative frameworks must enable its researchers to meet their full potential. They must be given the tools for discovery and there should be no barriers to the circulation of knowledge. Publishers play an important role in the research cycle, but researchers should be protected against their abusive practices.

Copyright reform represents a long-awaited window of opportunity for EU researchers and universities to shape the system to their, and to society’s, benefit. We could have a copyright system that encourages research, instead of hinders it. It is up to the Parliament to act before the window closes.

Alea López de San Román is a policy officer at the League of European Research Universities.

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This article also appeared in Research Europe