A 30-minute presentation that builds the case for a copyright exception for scientific research in the European legislation, in order to allow data analytics (Text and Data Mining / TDM)

1. A research-friendly
copyright environment for
open science and
innovation
Jean-François Dechamp, Pharm.D
European Commission, Directorate General Research & Innovation
Nordic Conference of Reprographic Rights Organisations
Helsinki, 26-28 August 2015

2. Disclaimer
The views expressed do not necessarily reflect
the views of the European Commission.

3. The European Commission is a...
Policy maker
• It proposes EU legislation
• It legislates with other Community
institutions (European Parliament,
Council...)
• It invites Member States to act
Funding agency
• It sets its own rules for EC-funded
scientific research and innovation
Capacity builder
• It funds projects that support EC/EU
policy

4. Who's who?
Andrus ANSIP
Vice-President
Digital Single
Market
Günther OETTINGER
Digital Economy and
Society
 DG CONNECT
Tibor NAVRACSICS
Education, Culture,
Youth and Sport
 DG EAC & JRC
Carlos MOEDAS
Research, Science
and Innovation
 DG RTD

5. Commissioner Moedas and DG RTD
Our objective: optimise the impact of publicly-funded
scientific research
• At European level (FP7 & Horizon 2020)
• At Member State level
Strong signals from researchers and innovators that we
need a change in approach of data analytics (TDM)
• Risk of consequences for future of research base and growth in
the EU
Our strategy
• Digital Single Market
• Open Innovation, Open Science, Open to the world

6. How do researchers publish their
results and why?
They are both producers (authors) and consumers (readers)
• As authors: researchers receive neither financial reward nor 'fair
remuneration' for their scientific publications
Disseminating results is part of the job they are paid for / Exceptions may exist e.g. for books
• As readers: researchers pay for accessing (their/other) publications;
they even accept to pay for covering the expenses of making their own
publications available to everybody (i.e. open access publishing)
This is done e.g. through the libraries via subscriptions, payment of Article Processing Charges etc.
The (non-financial) reward, as an author, is the measure of
the impact of their papers on their peers and on society
Authors may be 'pressed' to handle the copyright to the
publisher even when alternatives exist (e.g. CC licences)
• The EU copyright legislation cannot pretend to be used to change this
practice
• Horizon 2020 encourages authors to keep their copyright

7. What are we talking about?
TDM, Content Mining, Data Analytics...
• Not only Text but also Data (AV material, chemical formulas...)
Increased amounts of freely available or legally accessible
content (in part. through Open Access)
• The 'mining' we talk about is not stealing material!
Multi-disciplinarity of research and TDM practices
• Different fields of research  hence different sources
TDM is subject to lawful access
• Legal hurdles e.g. abstract minable but not the whole paper, potential
cases of researchers infringing copyright and/or 'delocalising' TDM
activities
Non-legal issues e.g technical barriers
• Not resolvable by legal action

8. What about licences?
Licences are a combination of permissions and
prohibitions
• Not all content available for mining is protected by
copyright
• Additional costs, loss of time, risks (that licences are not
granted, use of the results of mining is restricted...) etc.
• Academics (and many innovators) say that licences do not
work and are not desired
• Open Access publishers have reported no problem and
usually allow TDM without additional controlling measures
• Remember Licences for Europe!

9. The experience of 2013-2014
EC Public consultation
• By the EC, from Dec. 2013 – March 2014
• Out of eleven EU Member States that have answered, IE, SK & UK are
in favour of an exception – whereas EE & LV also express some
openness towards further studying legislative changes. Three EU
Member States favour licensing as the solution (IT, FR & PL)
Study on economic impact
• Charles River Associates (October 2013) for the EC
Study on the Legal Framework of TDM
• De Wolf & Partners (March 2014) for the EC
Mapping TDM in Academics and Research Communities
in Europe
• Lisbon Council Briefing (May 2014)

10. Expert Group Report on TDM
Five external + one in-house experts
• Chair Prof. Ian Hargreaves
• Sections on Stakeholders views, Economic issues and Legal
issues
• Report released in April 2014
Their own conclusions
1. Licensing initiatives, as a prologue to legal reform
2. Exception to remove TDM for scientific purposes from the
reach of European copyright and database, as a short-term
amelioration
3. Strategic reform of copyright and database law, as a long-
term solution

11. Reactions to the EG Report on TDM
Critics from FEP (Federation of European Publishers)
• Unsubstantiated report, questionable assumptions and wrong facts
(e.g. US/Europe), solutions already offered by publishers, potential
harm to right holders not taken into account, unfounded claim of 'fair
use'...
Analysis of FEP criticized by LERU (League of European
Research Universities) and LIBER (Association of
European Research Libraries)
• Negative impact of current legal uncertainty, insufficient and
inadequate solutions offered by publishers (e.g. click-through
licences), international co-operation, contract overriding national
principles, commercial activities, technical protection measures...
Globally welcome by academic community

12. A new European Commission

13. European Commission
EC Communication "A Digital Single Market Strategy for
Europe" (6 May 2015)
• Innovation in research for both non-commercial and
commercial purposes, based on the use of text and data
mining (e.g. copying of text and datasets in search of
significant correlations or occurrences) may be hampered
because of an unclear legal framework and divergent
approaches at national level. The need for greater legal
certainty to enable researchers and educational institutions to
make wider use of copyright-protected material, including
across borders, so that they can benefit from the potential of
these technologies and from cross-border collaboration will
be assessed, as with all parts of the copyright proposals in the
light of its impact on all interested parties.

14. Council of the European Union
Council Conclusions on open, data-intensive and
networked research as a driver for faster and wider
innovation (28-29 May 2015)
• The Council of the European Union [...] NOTES the need to
promote innovation driven by text and data mining
taking into account research needs, and to consider the
impact, including financial aspects, of the re-use of the
already legally accessible content; and UNDERLINES the
need to ensure legal certainty and an appropriate
regulatory framework that would facilitate a science and
innovation-friendly environment for better use of data;

15. European Parliament
EP Report adopted on 7 July 2015 (MEP Julia Reda
Rapporteur)
• The European Parliament [...] 48. Stresses the need to
properly assess the enablement of automated analytical
techniques for text and data (e.g. ‘text and data mining’ or
‘content mining’) for research purposes, provided that
permission to read the work has been acquired;
Own initiative
• Sets common views from different (political/national) opinions

16. The exception in 2001
[Whereas] (42) When applying the exception or limitation for non-commercial
educational and scientific research purposes, including distance learning, the
non-commercial nature of the activity in question should be determined by
that activity as such. The organisational structure and the means of funding
of the establishment concerned are not the decisive factors in this respect.
[...]
Article 5
Exceptions and limitations
[...]
3. Member States may provide for exceptions or limitations [...] in the
following cases:
(a) use for the sole purpose of illustration for teaching or scientific
research, as long as the source, including the author's name, is
indicated, unless this turns out to be impossible and to the extent
justified by the non-commercial purpose to be achieved;

17. The Legislator there and now
The 2001 Legislator
• Tentatively addressed the specific situation of scientific
information with the exception for research in the
current Directives
The 2015/16 Legislator
• Is in a position to update and fine-tune the original
exception for research, as a long-term solution

18. 1. An optional exception
Fact: The optional exception for research has not been
(fully) implemented in all EU28 Member States
• Not implemented in EL, FI, NL, SE
• Partially implemented in AT, BG, CZ, DK, ES, IE, SK
• Implemented at least in BE, CY, DE, EE, FR, HR, HU, IT, LT,
LV, LU, MT, PL, RO, UK
Issue: Research and Innovation is collaborative
• Research and Innovation knows no borders
• Pan-European at least, international at best
Idea: Avoid the distortion within the EU and make the
implementation of the exception mandatory

19. 2. Different interpretations
Fact: To date, the UK is the only Member States that
has – and only recently, clarified that the research
exception encompasses TDM
• More to follow e.g. FR (in the pipeline)
• e.g. Implementation under the teaching exception/quotation
exception
Issue: The environment of nowadays research and
innovation is increasingly digital
Idea: Avoid the distortion within the EU and address
modern research and innovation by clarifying that the
exception encompasses TDM

20. 3. 'Non-commercial' restriction
Fact: Universities and innovative companies
increasingly work together
• Multiple funding (e.g.PPP), Knowledge Transfer activities etc.
• Fundamental research and applied research: large grey zone
Issue:
• 'Legal flesh' around the concept of "non-commercial research"?
(e.g. any unique interpretation of "commercial purpose"?)
• EU and Member States support innovation for growth and job
Idea: Bring coherence for an exception to scientific
research without any consideration of 'commercial' or
'non-commercial' purposes

21. DG RTD Proposal (long term)
Exception 2001 Exception 2015-2016 Licences
Optional
implementation
Mandatory
implementation
Initiatives in
licensing activities
remain welcome
in the short term
Subjet to different
interpretations
Clarified for TDM Overall condition:
the content must
be accessed
legally
Restricted to
'Non-commercial'
research
Open to any
scientific research

22. Where are we now?
The Commission has not taken any decisions yet
• All the options (legislative/non-legislative; commercial/non-
commercial etc.) are still on the table
Next steps of the overall process
• Impact Assessment (IA)
Background, Problem definition, Objectives, Combination of options, Choice
of instrument, Monitoring and evaluation
• Inter-service Steering Group meeting
All concerned EC services (incl. DG RTD)
• Impact Assessment Board
Submission, meeting, opinion  revised IA
• Inter-service Steering Group final meeting
• Inter-service Consultation
• Adoption by the Commission
Target: December 2015

23. Commissioner Carlos Moedas
I am for, and will always be
for, an exception in Text and
Data Mining
(European Parliament, 16 July 2015)
Source: Science Business

24. Thank you!
We want to give European researchers and
innovators the best conditions to do their job!
Twitter: @OpenAccessEC
Mail: RTD-open-access@ec.europa.eu
Web: http://ec.europa.eu/research/swafs/