On 14 September the European Commission (EC) published its long-awaited proposal for a Directive on copyright in the Digital Single Market. While we welcome the proposal to introduce a mandatory exception for ’text and data mining’ (TDM) in the field of scientific research, we are concerned about the inclusion of a far-reaching “technical safeguards” clause granted to rightholders in order to limit the newly established exception.
The proposal grants a mandatory exception to research organisations to carry out TDM of copyrighted works to which they have lawful access. The exception is only applicable to research organisations, thus narrowing its scope and excluding everyone else with the lawful access to the copyrighted works.
According to the accompanying Impact Assessment, the TDM exception has the potential of inflicting a high number of downloads of the works, and that is why the rightholders are allowed to apply “necessary” technical measures in the name of “security and integrity” of their networks and databases.
Such a requirement, as it is proposed by the EC in the current text, gives rightholders a wide-reaching right to restrict the effective implementation of the new exception. Rightholders are free to apply whichever measure they deem “necessary” to protect their rights in the TDM exception, and to choose the format and modalities of such technical measures.
This provision will lead to a wider implementation of “digital restrictions management” (DRM) technologies. These technologies are already used extensively to arbitrarily restrict the lawful use of accessible works under the new TDM exception. This reference to “necessary technical safeguards” is excessive and can make the mandatory TDM exception useless. It is worth repeating that the exception is already heavily limited to cover only r esearch organisations with public interest.
Further reasons to forbid the use of DRM technologies in the exception are:
DRM leads to vendor lock-in. As researchers will need a specific compatible software in order to be able to access the work, they will be locked to a particular vendor or provider for arbitrary reasons. These technical safeguards will most likely stop researchers from exercising their right under the exception of using their own tools to extract data, and can lead to the factual monopoly of a handful of companies providing these technologies.
DRM excludes free software users. DRM always relies on proprietary components to work. These components, by definition, are impossible to implement in Free Software. The right of Free Software users to access resources under the exception will be violated.
DRM technologies increase the cost of research and education. Accessing DRM-protected resources typically requires purchasing specific proprietary software. Such technology is expensive and it is important to ask how much the implementation of these technologies would cost for research and educational institutions throughout Europe. Furthermore, very often this software cannot be shared, so every research workstation would need to purchase a separate copy or license for the software.
DRM artificially limits sharing between peers. A typical functionality DRM provides is to cap the number of copies you can make of documents and data. This will force different researchers to access and download data and documents several times even if they are working on the same team. This is a waste of time and resources. As DRM also typically limits the number of downloads, teams could find themselves cut of from resources they legitimately have a right to access under the exception.
We ask the European Parliament and the EU member states to explicitly forbid the use of harmful DRM practices in the EU copyright reform, especially with regard to already heavily limited exceptions.
