Response to the call for evidence on the review of the CDSM Directive

The European Alliance for Research Excellence (EARE) welcomes the opportunity to provide input into the call for evidence on the review of the Copyright in the Digital Single Market Directive (CDSM Directive) and a potential targeted initiative for a better copyright environment for creativity and innovation. This is a unique opportunity for the EU to ensure that the copyright framework delivers the right incentives for research and innovation in the EU.

EARE’s vision for an EU copyright framework fit for research and innovation

The European Commission’s review of the Copyright in the Digital Single Market (CDSM) Directive represents a key opportunity to improve the copyright framework for research and innovation. EARE members consider that any future initiative should focus on improving the implementation of the existing framework, rather than introducing new legislative proposals. In particular, to ensure a copyright framework that effectively supports research and innovation, the EU should address the key challenges faced by researchers and innovators in the application of the TDM exceptions.

Key challenges faced by researchers and innovators under the TDM exceptions

For EARE members, text and data mining (TDM) exceptions under Articles 3 and 4 of the CDSM Directive are essential for Europe’s research and innovation ecosystem. These provisions support a wide range of activities, including scientific research, AI development, healthcare innovation, cybersecurity, and policy analysis. By allowing the analysis of large datasets, TDM facilitates new discoveries, reduces bias, and accelerates innovation across disciplines.

However, despite their importance, the current implementation of the TDM exceptions presents significant challenges, including: (1) limitations to access data through technological protection measures (TPMs) and restrictive licensing terms; (2) unclear opt-out mechanisms; (3) outdated distinction between commercial and non-commercial research; and (4) fragmented implementation across Member States, with some countries implementing more restrictive TDM exceptions. EARE also highlights growing ambiguity regarding the application of TDM exceptions to AI training and generative AI. While EU law already covers such uses, divergent interpretations are creating a chilling effect on innovation.

EARE recommendations for an EU copyright framework fit for research and innovation

EARE believes that strengthening TDM exceptions is essential to support the EU’s research and innovation ecosystem while preserving incentives to create new content. It is important that any future initiative addresses the current limitations of the TDM framework to improve legal clarity, reduce  uncertainty, and enable the full potential of TDM exceptions across research activities and EU countries, while leaving open the possibility of broader exceptions over time.

EARE recommendations include:

1. Ensure the effective and harmonized implementation of the TDM exceptions across the EU, including guaranteeing that publicly accessible data and research remain open and it is not subject to restrictions that limit access or TDM. This can be achieved by monitoring the implementation of TDM exceptions across all EU member States, ensuring that restrictive interpretations are avoided; and reaffirming that TDM exceptions apply to AI training and generative AI.
2. Remove the commercial and non-commercial research distinction as part of the CDSM Directive to better reflect the realities of today’s research.
3.  Explore the development of a broader and more flexible TDM framework with the aim to support the research and innovation ecosystem. EU institutions should assess the potential benefits of broader TDM exceptions which would allow TDM on lawfully accessible data including for commercial purposes and with fewer or no restrictions.
4. Establish an open, mandatory, and flexible research exception as part of the InfoSoc Directive
5. Guarantee that opt-out mechanisms under Article 4 of the CDSM Directive are clear, machine readable, and workable. It is important that opt-out mechanisms ensure that the scientific research TDM exception is not undermined in practice. The EU should also encourage the use of widely adopted, machine-readable standards and avoid fragmented, immature, or unproven approaches. EU policymakers should also strengthen accountability when opt-outs are exercised broadly despite incomplete or unclear rights ownership.
6. Strengthen the enforcement of TDM exceptions against technical protection measures (TPMs) and abusive contract terms. Any potential measure should establish mandatory 72-hour resolution windows, potential sanctions for repeat offenders or long lockouts and legal support for researchers and innovators to ensure that they can contest unfair contract terms that override any research and education exceptions, including the right for TDM.
7. Ensure that licensing practices do not undermine research and innovation, advancing licensing practices are fair, transparent, and non-discriminatory, and do not impose abusive conditions or excessive fees.
8. Support proportionate and balanced transparency requirements empowering research and innovation. This would imply the effective implementation of existing transparency frameworks such as the Code of Practice for General-Purpose AI models, avoiding the introduction of additional transparency requirements such as itemized lists of copyrighted content that are disproportionate for researchers and innovators, ensuring the non-retroactive application of transparency obligations in public-private partnerships, especially for activities under the scientific research TDM in Article 3, and refraining from introducing mechanisms such as rebuttable presumptions that shift the burden of proof onto developers and researchers in a disproportionate manner.
9. Establish an ambitious and harmonized secondary publication right, ensuring that taxpayer publicly funded research is immediately available to the public at the time of publication.
10. Ensure that any future targeted initiative within the copyright framework fully considers the interests of the research and innovation ecosystem. Any initiative should be supported by a comprehensive impact assessment evaluating the effects on research and innovation activities, including the functioning of the TDM exceptions.
11. Establish an informal multi-stakeholder dialogue on the implementation of the CDSM Directive through a holistic approach that includes all relevant stakeholders such as rightsholders, research organizations, individual researchers, universities, libraries, spin-offs, start-ups, developers, companies, SMEs, and other relevant actors.
12.  Support the remuneration of the creative sector through targeted funding mechanisms under the next Multiannual Financial Framework rather than restricting access to content for research and innovation through the copyright framework.

These recommendations are key to ensuring that the EU’s copyright framework works for research and innovation. The review of the CDSM Directive is a key opportunity to strengthen the EU’s leadership in research, innovation, and AI by making existing TDM exceptions clearer, more consistent, and more enforceable across Member States.

EARE’s response to the call for evidence on the review of the CDSM Directive and a targeted initiative for a better copyright environment for creativity and innovation here.

About EARE: The European Alliance for Research Excellence (EARE) was convened by Microsoft in 2017, and now brings together nine members from the research and innovation ecosystem in Europe, including the Association of European Research Libraries (LIBER Europe), the European Bureau of Library, Information and Documentation Associations (EBLIDA), BSA | The Software Alliance, Microsoft, Allied for Startups, LACA, Research Libraries UK, SCONUL (Society of College, National and University Libraries), and UCL (University College London) Library, advocating for the EU to live up to its innovation potential in the digital economy.