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.
The 43rd session of the WIPO Standing Committee on Copyright and Related Rights (hereinafter SCCR) made substantial progress on the issues advocated by the A2K Coalition (Access to Knowledge Coalition), which IPI is a member of. This year’s session was the most productive on the issues of exceptions and limitations. James Love (Knowledge Ecology International), a long-time observer at WIPO, described the outcome and the impact of the public interest community as the strongest since the conclusion of the Marrakech Treaty, which brought global copyright exceptions for the benefit of the blind and visually impaired.
Today, March 17, 2023, a symposium on law in the information society is taking place in the golden lecture hall of the Faculty of Law in Ljubljana. Dr. Maja Bogataj Jančič will present copyright aspects of artificial intelligence at the symposium.
The third day of the 43rd session of the WIPO Standing Committee on Copyright and Related Rights is intended for discussion on the topic of exceptions and limitations to copyright, especially in connection with the right to research.
The 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR/43) is being held in Geneva from March 13 to 17, 2023. The Intellectual Property Institute has a permanent observer status at WIPO since 2022 and is also a member of the Access to Knowledge Coalition (A2K coalition).