C O M P O S I T I O N B Y A N D R I J B O R Y S A S S O C I A T E S , U S I N G I M A G E B Y O L I V I E R L E M O A L

in Article 3 that member states adopt a mandatory new exception to copyright and database rules to allow nonprofit research and cultural heritage institutions to engage in text and data mining for scientific research purposes.

While this exception was good so far as it went, earlier versions of the DSM Directive would have left independent researchers and profit-making text and data miners out in the cold. Because EU policymakers aspire to foster the growth of artificial intelligence and other data-intensive businesses, they came to recognize restricting text and data mining to nonprofit scientific research was shortsighted, especially given that other countries, notably the U.S. and Japan, have adopted broader text and data mining privileges.

While Article 3 retains the text and
data mining exemption for nonprofit
scientific research, the final DSM Di-
rective sets forth a new Article 4 requir-
ing member states to create a more
general mandatory exception to copy-
Directive’s strict liability rules for on-
line content-sharing platforms. One is
for nonprofit services, such as online
encyclopedias, educational and scien-
tific repositories, and open source soft-
ware developing platforms. A second
is for startup online content-sharing
services that have been available to the
EU public for less than three years and
that have annual revenues of 10 mil-
lion euros or less. The liability of these
two types of services for user infringe-
ments are subject to compliance with
the existing notice and takedown rules.

Critics have charged that the DSM strict liability rules will interfere with user freedoms to make lawful uses of copyrighted works, such as parodies or critical commentaries, because filtering technologies cannot distinguish between outright infringements and privileged uses.

Seemingly in response to this criti-
cism, Article 17 now states that mem-
ber states “shall ensure that users in
each Member State are able to rely on
exceptions for “(a) quotation, criti-
cism, review; (b) use for the purpose of
caricature, parody, or pastiche.”

Whether this effort to ensure privileged uses can be uploaded to content-sharing sites will meaningfully limit the Directive’s scope or serve only as aspirational window dressing remains to be seen. It seems unlikely, though, that EU member states can require developers of filtering technologies to refine their algorithms so that all parodies, critical comments, and other privileged uses will remain available to the public. Yet, this seems to be the only way to ensure privileged uses can be preserved.

 

Text and Data Mining Exceptions Under existing EU law, text and data mining on digital repositories of copyrighted works and databases had an uncertain status. The drafters of the DSM Directive decided this activity should be lawful because of the important insights the use of such research tools can enable. To this end, they proposed