Publishers can easily block the new TDM exception

Today, LIBER, the Association of European Research Libraries, published results of the survey on content blocking, carried out by LIBER’s Copyright & Legal Matters Working Group and the UK Libraries and Archives Copyright Alliance (LACA). The results of the survey are worrying, as they show that the Text and Data Mining (TDM) exception contained in the new Directive 2019/790 can easily be undermined by technical blocking from publishers. This information is crucial in the light of consultations for implementation of the new Directive in Slovenia, which are to be held over the course of the next two weeks.

The new Directive 2019/790 in its Article 3 provides for the exception for TDM made by research organisations and cultural heritage institutions for the purposes of scientific research. In respect of this exception, the rightsholders are not only prohibited from preventing researchers from exercising their rights under the exception, but are also required to remove any technical protection measures (TPMs) that do so.

However, Article 3 of the new Directive does not specify how quickly the TPMs have to be removed and LIBER’s survey shows that this is highly problematic. Indeed, the survey shows that in practice rightsholders are not inclined to remove TPMs, and even when the TPMs are eventually removed, this takes a lot of time and resources. Consequently, this has negative implications to individual researchers, as well as institutions that are performing TDM.

Such findings show just how important it is that a provision, providing a maximum period of 72 hours to remove TPMs, is advocated for in the process of implementing the new Directive in national legislations of EU Member States (for suggestions on how to implement such a provision, see Communia Guidelines on implementation of articles 3 and 4 of the directive).

If such provision is not adopted by Member States, the new TDM exception will, as the survey shows, exist only in theory, as the rightsholders will easily prevent TDM with TPMs.