The Statewatch saga continues. Following the first release of parts of the European Commission’s DG MARKT draft Impact Assessment on the Copyright Review (see our reaction here), Statewatch has now released three further sections, namely those related to:

1. Text and Data Mining (TDM)
2. Disabilities, and
3. Legislative Intervention.

C4C will analyse more thoroughly these documents, knowing very well that they still only represent a draft and may have changed since the end of the consultation process (at least, one hopes this is the purpose of such a consultation).

But as we have a sweet tooth for TDM as a driver for innovation, we had a quick read through that section and wanted to share our first reactions. The language that seems to stem from the body of the IA does not state much, so the ‘meat’ of the issue seems to have been addressed in the Annex.

The tone of this Annex is rather factual, and does describe the uncertainties faced by the research community and their claim – legitimate in our view – that the right to read equals the right to mine. It also nuances the claim by rightholders that they ‘rarely receive requests for an authorisation to use their content’ for TDM purposes, by recognising that this could perfectly well stem from the potential higher transaction costs combined with the legal uncertainty surrounding TDM.

Where the document becomes slightly one-sided, is when – Oh, surprise – the topic of Licences to solve everything comes up. No word on the  fact that the Licences for Europe (L4E) so-called ‘outcome’ put forward solely and unilaterally by the STM (Scientific, Technical and Medical) publishers was not welcomed by any of the stakeholders sitting on the other side of the fence (indeed, not many of them were left sitting around the table).

No word either on the fundamental flaws in the licence proposed by Elseviers recently, which is the perfect illustration of everything that could go wrong if publishers are allowed to use an instrument such as licensing to frame TDM practices (see the analysis in two parts by Peter Murray Rust, here and here, as well as the very good summary by SPARC). The Annex does state that ‘researchers and libraries argue that they are in a position of weakness in negotiations with publishers‘ (does anyone even doubt that?) and that in some cases, ‘if one of all relevant publishers whose consent is sought for the project refuse access to his content‘, the benefits of TDM can be significantly reduced. It also acknowledges that ‘research institutions have pointed out that TDM should not be limited to non-commercial research’, without detailling the rational behind this claim. But many more restrictions have transpired through the Elsevier TDM policy proposal.

C4C signatory LIBER, published a discussion paper [PDF] and blog post in response to Elsevier’s policy, stating:

‘LIBER  believes that the right to read is the right to mine and that that licensing will never bridge the gap in the current copyright framework as it is unscalable and resource intensive. Furthermore, as this discussion paper highlights, licensing has the potential to limit the innovative potential of digital research methods by:

1. restricting the tools that researchers can use
2. limiting the way in which research results can be made available
3. impacting on the transparency and reproducibility of research results.’

More generally, it is crucial to realise that licensing will not work as an alternative solution.

• First, the negotiation of licences is resource intensive and unscalable, and the starting point is often one where the parties negotiating are in a situation of imbalance of negotiating powers;
• Secondly, licences do not address the current ambiguity around the mining of the open Web; and,
• Finally, licensing TDM is unjustifiable as no licence should be required to mine.

As a bit of a side note, we think it would be useful to frame this discussion in the context of the cost academic publishing already represents today to Universities. This was recently highlighted in an interesting blog post by OKFN’s open access working group, which refers to a blog post by Tim Gowers, who released data showing that 19 Russell Group Universities alone spend over £14.4 million (excluding VAT) on subscriptions to journals published by Elsevier alone. If indeed, it ens up being ‘all about the money’, one cannot help but share the question set out by OKFN: “What could the UK academic community do with £14.5 million? That is the same as the yearly tuition fees for over 1600 undergraduates paying £9,000 fees. And that is what just 19 Universities in the UK are spending in total during a single year on journal subscriptions to a single publisher.”

So, No, more licences (even if they are so-called ‘free’ in terms of money exchanges, though not in term of constraints) are not the solution.

We would therefore encourage the European Commission, as we have done in our response to their consultation, to take the following approach as regards TDM:

• It should be clarified that TDM does not fall under copyright provisions;
• On top of this, a specific exception allowing the copying of content for the purpose of text and data mining is necessary;
• It should also be explicitly stated in the law that technical protection measures (TPMs) and contracts should not override such an exception, nor any other exception for that matter; and,
• Finally, such an exception should not distinguish between commercial and non-commercial purposes as, for research institutions, this would prevent knowledge transfer. Moreover, such a differentiation would not be in the public interest.

Especially, on this last point, an independent expert group noted in a Report commissioned by the European Commission’s Directorate-General for Research and Innovation (DG RTD) that ‘from an economic perspective it makes little sense to propose a distinction between commercial and non-commercial TDM’, adding to it that ‘a well-designed copyright regime should provide appropriate stimulus for all types of research and, at the same time, an appropriate level of protection for all rights owners’ and that ‘once this balance has been reached, there is no reason to distinguish between commercial and non-commercial research’. It is also worth noting that the findings from the DG MARKT commissioned Study on the legal framework of TDM by De Wolf & Partners are not yet reflected, as the Study only dates from March 2014, one hopes they will contribute to the final version of the European Commission’s Impact Assessment.

It is regretable tha the Impact Assessment does not try to identify best practices in the area of TDM, as done for example by the Public Library of Science (PLOS).

Only with such concrete steps will the EU be able to set in place a future-proof framework that promotes innovation by enabling data-driven research.

[Other sources]

• IPKat
• Europeana