This document outlines the legal issues surrounding text and data mining (TDM) for research. It discusses how intellectual property law and data protection law apply differently depending on whether low-level or high-level data is being mined. For both areas of law, the rules create barriers for TDM and recommendations are provided. These include calling for a broad TDM exception in EU law, self-regulation by stakeholders, and guidance from data protection authorities on using personal data for TDM in accordance with data protection principles.

1. OpenDataMonitor
Horizon 2020
Coordination and Support Action
GARRI-3-2014 Scientific Information in the Digital Age: Text and Data Mining (TDM)
Project number: 665940
Dealing with the legal bumps on the road to further TDM uptake
FutureTDM
Reducing Barriers and Increasing Uptake of Text and Data Mining for Research Environments
using a Collaborative Knowledge and Open Information Approach
FutureTDM Symposium, Salzburg
June 13th, 2017

2. Outline
Introduction
▪ Sorts of contents
▪ Applicable regimes (IP or Data Protection)
Intellectual Property
▪ rules
▪ impact
▪ recommendations
Data protection
▪ rules
▪ impact
▪ recommendations

3. What am I mining?
Low-level data
▪ common idea of ‘data’
▪ ’raw’ data
▪ no human intervention
High-level data
▪ processed or enriched data
▪ human intervention
▪ interpreted data
https://ipkitten.blogspot.co.at/2017/05/an-eu-text-and-data-mining-exception.html

4. Low-level data
• GPS coordinates
• ZIP codes
• measuring points
• [etc]

5. High-level data
• texts (articles, papers, blogs)
• (moving) images
• sounds and music
• aggregated data (e.g. graphs, diagrams)
• [etc]

6. Applicable regimes
Low-level data
▪ data protection law
▪ personal data (whereabouts, address, IP)
▪ sui generis database rights
▪ collection of data
▪ copyright
▪ unlikely
High-level data
▪ copyright
▪ texts, images, films, music, data collection
▪ database rights
▪ collections of data or works
▪ data protection law
▪ occasionally

7. IP: rules
Exclusive rights
▪ reproduction | extraction
▪ communication to the public | re-utilisation
Exceptions
▪ EU: research | transient copies | private
▪ TDM: UK | France (no decree)
▪ pending proposal in Germany

8. IP: impact
• Main rules bring TDM under rightholders’ monopoly
• Fragmentary landscape of exceptions
• Narrow application of existing (TDM) exceptions
• Uncertain scope of exceptions
Uncertainty | Fragmentation | Restrictiveness

9. IP: recommendations
EU lawmaker
▪ TDM exception
▪ for anyone with lawful access to content
▪ no restrictions on beneficiaries, or nature or purpose of research
▪ no TPMs
▪ integrity and security measures may not render exception useless
Research funders:
▪ publicly funded research TDM’able
▪ part of grant agreements/conditions
Right holders | content creators | content providers
▪ User-friendly TDM conditions in licensing
▪ both legally and technically (TPMs/security measures)

10. Data Protection: rules
Legal ground for personal data processing
▪ Consent from data subjects for specified purposes
▪ Necessary to perform contract to which data subject is party
▪ Necessary for legitimate interests of data controller (subject to fundamental
rights and interests of data subject)
Principles of processing
▪ Data minimisation & purpose limitation: processing and storage no more or
longer than necessary for specified purposes (purpose limitation)
Security of data
▪ integrity and confidentiality
▪ secure storage
▪ access limited to certain people

11. Data Protection: impact
TDM = re-use from many sources
▪ probably not covered by consent
▪ huge amount of data and, hence, data subjects
−practically impossible to obtain consent
Data minimisation (law) vs data maximisation
▪ Minimal processing allowed, while added value of Big Data and TDM lies in
maximised processing
▪ More data = more and better insights
▪ Retain data just for the sake it becomes valuable in the future
Some leeway for “historical, statistical and scientific purposes”
▪ presumed to be compatible with purposes of collection
▪ no need to inform all subjects when impossible or disproportionate effort
▪ no right to be “forgotten"

12. Data Protection: recommendations
EU lawmaker
▪ explanatory documents on “historical, statistical and scientific purposes”
European Data Protection Board | National data protection authorities
▪ provide general guidelines on TDM to help practitioners comply
▪ certification of data research | self-regulation | codes of conduct
▪ guidelines on meaning of “historical, statistical and scientific purposes”
Professional associations
▪ draft self-regulation or codes of conduct to clarify how and ensure that
members – companies & research org’s – can comply

13. Seriously think about the legal Future of TDM
Calling on the European lawmaker
▪ To think of the positive impact a broad TDM exception will have on the
spread of new knowledge and innovative ideas
Calling on (representative) stakeholders, users and rightholders
▪ To draft policies, code of conducts or self-regulation that stimulate to extract
economic and societal value from big data, while complying with IP and data
protection rules and principles
Calling on data protection authorities
▪ To stimulate innovative TDM projecs and activities by providing guidance
and help in complying with data protection law when mining (anonymised)
personal data
13FutureTDM

14. Contact:
On behalf of Marco Caspers
freyja.vandenboom@okfn.org
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