It’s crunch time for the future of Europe’s Artificial Intelligence – Europe needs a mandatory TDM exception

Thu, Feb 07, 2019

Early next week may be the final days when the whole debate around the overhaul of copyright rules in Europe is over. And between cancelled trilogue meetings, failed Council Presidency compromises and rejected Parliament mandates, a lot has happened since the European Commission initially proposed its copyright reform back in September 2016.

Ever since, we have been advocating for a broad, mandatory Text and Data Mining (TDM) exception (Article 3), a process that is critical to the development of Artificial Intelligence (AI).

As we are entering crunch time, here are some of the highlights from the past three years:

The European Commission’s initial proposal included a mandatory exception for Text and Data Mining (TDM), but that would have a limited scope and only apply to research organisations. This restricted exception was leaving out many European stakeholders who together comprise the fabric of the research and innovation ecosystem, including researchers, libraries, startups, SMEs, technology companies, and others. Over the past two years, we, as members of EARE, as well as many of these stakeholders, have actively engaged with the European Commission, Parliament and Council to explain the critical role that TDM plays and will continue to play in European research and innovation, and more particularly in the development of AI.

This led to the inclusion by the three institutions of a new Article 3a, creating an optional exception with an expanded scope of beneficiaries – anyone who has lawful access to the works. While this addition represented a step in the right direction, it had several shortcomings, the main one being that it could be easily overridden by rightsholders, creating market fragmentation.

Yet, adopting a broad, mandatory exception today is essential, as the European Commission, and several member states such as France and Germany are promoting the development of AI and pouring large sums of money to support the emergence of European champions in this area.

The final round of negotiations will offer a last opportunity to policy-makers to create a broad, clear and innovation-friendly mandatory TDM  exception.

And, while the EU was discussing copyright at length, other non-EU countries have adopted TDM-friendly copyright laws giving their TDM champions a head start over their European competitors. After Japan in May, Singapore recently announced that it would amend its copyright laws to “allow copying of copyrighted materials for the purpose of data analysis, where the user has lawful access to the materials that are copied”. The aim of this adaptation is to “promote applications of data analytics and big data across a gamut of industries, unlocking new business opportunities”.

In the U.S., the White House recently signed into law the OPEN Government Data Act, which obligates U.S. federal agencies to make available machine-readable data in an open license format. This new law creates more opportunities for organizations, companies, and users to innovate with government data.

For the opportunity that a broad, mandatory TDM exception provides to European innovation and AI,13 organisations published an open letter on 15 January, requesting from European negotiators that they make the right choice: replacing “may” by “shall” in Article 3a, Para. 1 of the proposed text.

This could very well be the last opportunity for Europe to get it right and support a flourishing European AI ecosystem. Negotiators should seize it!

Other blog posts

  • The Copyright reform must also be fair to European researchers and entrepreneurs

    Thu, Aug 30, 2018

    Research and innovation organisations call on the European Parliament to revise Article 3 on Text and Data Mining (TDM) in the copyright directive

  • Japan amends its copyright legislation to meet future demands in AI and Big Data

    Mon, Sep 03, 2018

    Japan just reformed its copyright laws to encourage the development of AI in the country. EU policy-makers should do the same.

  • The European Parliament’s position on the Copyright Directive will hold back European research and innovation

    Thu, Sep 13, 2018

    EARE members are disappointed in the limited TDM exception adopted by the European Parliament as part of the Copyright reform