Ensuring Text and Data Mining: Remaining Issues With the EU Copyright Exceptions and Possible Ways Out

European Intellectual Property Review, 2021

43 Pages Posted: 20 Apr 2021 Last revised: 21 Apr 2021

See all articles by Rossana Ducato

Rossana Ducato

School of Law, University of Aberdeen; Université Catholique de Louvain

Alain M. Strowel

Saint Louis University; University of Liège

Date Written: February 1, 2021


Text and Data Mining (TDM) is a vital tool in the Big Data economy. TDM uses techniques from natural language processing, machine learning, information retrieval, and knowledge management for the automated analysis of digital content (structured and unstructured data), in order to extract information, identify patterns, discover new trends, insights or correlations.
The importance of TDM has been understood by the European legislator, which has introduced two specifically tailored exceptions in the Copyright in the Digital Single Market Directive. After a critical analysis of the new provisions, the paper argues that they still present several flaws that risk to stifle AI developments in Europe. Thus, the contribution outlines an interpretative framework, based on the analysis of the infringement test, to rethink the rights of reproduction and extraction in line with the economic rationale of copyright and the database right. Furthermore, the paper makes suggestions to improve the TDM exceptions at national level. In conclusion, it points out the remaining challenges of private ordering and trade secrets for research and AI innovation.

Keywords: copyright, text and data mining, exceptions and limitations, Directive 2019/790/EU, right of reproduction, right of extraction, database protection, software, press publishers right, artificial intelligence

Suggested Citation

Ducato, Rossana and Strowel, Alain M., Ensuring Text and Data Mining: Remaining Issues With the EU Copyright Exceptions and Possible Ways Out (February 1, 2021). European Intellectual Property Review, 2021, Available at SSRN: https://ssrn.com/abstract=3829858

Rossana Ducato (Contact Author)

School of Law, University of Aberdeen ( email )

Taylor Building
King's College
Aberdeen, Scotland AB24 3UB
United Kingdom

Université Catholique de Louvain ( email )

Bruxelles, 1000

HOME PAGE: http://www.rosels.eu/member/rossana-ducato/

Alain M. Strowel

Saint Louis University ( email )

220 North Grand Boulevard
St. Louis, MO 63103
United States

University of Liège

B-4000 Liege

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