Text and data mining constitutes a fundamental instrument for the development of scientific research and technological innovation. Nevertheless, there are some legal hurdles that inhibit TDM’s fullest advance. The most serious of these hurdles is the fact that virtually any TDM activity constitutes or presupposes an act of reproduction (a copy). When the copy is of a work protected by copyright (as many scholarly articles or databases are), the law reserves that act to the right holder. In other words, when we are making a copy (even temporary or partial) of a protected work (as we often do in TDM), we need to seek either the copyright owner authorisation (e.g. a licence) or make sure that an exception to copyright covers our activities.

Otherwise, the act of TDM is likely to constitute a copyright infringement. The legal basis for this general situation can be found in the current copyright framework, which applies in a similar manner – although with significant variations – to all EU countries. At the EU level the most relevant piece of legislation for present purposes is probably the Copyright in the Information Society Directive of 2001, which establishes that anyone wishing to make a copy of a work protected by copyright must obtain the authorisation of the right holder, regardless of the fact that such a copy may be only transitory and partial, unless of course such use is permitted on the basis of a limitation or exception to copyright (this can be derived in particular from Arts. 2 and 5). This situation is compatible with the international framework, although the latter is far less stringent than the EU one and allows countries to implement different and more flexible solutions (see for example the US where most TDM activities are considered transformative uses and therefore constitute fair use, a solution that many argue should be implemented also in the EU). Therefore, since nearly any TDM activity implies the making of a copy of a protected work, TDM may only be performed in presence of an authorisation (such as licences permitting TDM, e.g. Creative Commons) or of an exception (e.g. the TDM exception recently introduced in the UK). Regarding the latter solution, the highly fragmented EU legal framework that surrounds exceptions and limitations in general and TDM in particular adds further complexity to the picture. In fact, while the rights that limit unauthorised TDM, such as the right of reproduction, are harmonised at the EU level and generally employ broad definitions (e.g. partial and temporary reproductions), exceptions and limitations are not fully harmonised. Consequently, what is possible in one country of the Union may well not be possible in another one. This adds obvious complexities to an activity such as scientific research and TDM which knows no boundaries especially in an Internet based society.

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 This post was prepared by Thomas Margoni, the legal coordinator of WG3 and his colleague Giulia Dore.