Context of the TDM Reservation Protocol initiative
In addition to their significance in the context of scientific research, text and data mining techniques (TDM) are widely used both by private and public entities to analyse large amounts of data (including copyright protected content like text, images, video etc.) in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies.
In a digital environment, TDM usage of copyright protected works can be subject to different terms and conditions, depending on the legal framework. In generic terms, an act of reproduction is required before TDM can be applied on content accessible on the Web; international laws stipulate that such act of reproduction is subject to authorization by rightsholders. So far, analyzing and processing the terms and conditions of a website, contacting rightsholders, seeking for permission and concluding licensing agreements require time and resources.
In such context, a machine-readable solution which streamlines the communication of TDM rights and licenses available for online copyrighted content is necessary to facilitate the development of TDM applications and reduce the risks of legal uncertainty for TDM actors. Such a solution, that shall rely on a consensus by rightsholders and TDM actors, will optimize the capacity of TDM actors to lawfully access and process useful content at large scale.
The EU Directive 2019/790, better known as the DSM Directive (DSM meaning Digital Single Market), introduces two exceptions or limitations to the rights of rightsholders on lawfully accessible content, for reproductions and extractions for the purposes of TDM:
- In its Article 3, a mandatory exception for research organisations and cultural heritage institutions which carry out TDM for the purposes of scientific research.
- In its Article 4, an exception for any organisation willing to carry out TDM for any purpose other than scientific research, including commercial purposes, which applies on the condition that the use of content for TDM has not been expressly reserved by their rights holders in an appropriate manner, such as machine-readable means.
These TDM exceptions apply to TDM usage in the European Union in relation to content from European and foreign rightsholders. Outside of the EU, where the DSM legislation does not apply, the said exception does not apply: exclusive rights of right-holders to authorize acts of reproduction are maintained. In such cases, no TDM can be performed without the explicit authorisation of these rightsholders: in these countries, the absence of a reservation of rights by rightsholders cannot be considered as an implicit authorization to reproduce copyrighted content for TDM purpose, and advocating fair use or a similar rule is legally uncertain, as these actions are judged on a case-per-case basis.
The “opt-out” mechanism introduced by the DMS Directive is therefore a real opportunity for TDM actors and publishers across countries to define a machine-readable technique able to express not only if TDM rights on specific Web content are reserved or not, but also how rightsholders can be contacted and which licenses are available, if any. This is a tremendous help for TDM actors from all countries looking for legal certainty.