Irish Government proposes introduction of Irish text and data mining exception

Readers may recall that back in 2013 the Irish Review Committee released a very interesting report, aimed at Modernising Copyright in this EU Member State [see here, here, here, here, here]. 

Moving from the realisation (or rather wish?) that "Copyright reform is in the air", the Report recommended a number of changes to the Irish copyright framework as embodied in the 2000 Copyright Act, including an ambitious proposal to introduce a tightly drawn Irish fair use exception (holding that this possibility would not be prevented by the system of exceptions and limitations in the InfoSoc Directive), and a specific exception for linking and marshalling [all this occurred while the CJEU Svensson decision - Katposts on linking here - was pending, and it was not entirely clear whether linking could qualify as an act of communication to the public].

After the Report was released, its most ambitious proposals were not brought forward.

Now the IPKat has learned from Katfriend Eoin O'Dell (Trinity College Dublin, one of the drafters of the Report and tweeting as @cearta) that the Irish Government has published a Bill to amend the Irish Copyright Act. The goal is - among other things - to take account of certain recommendations for amendments to that Act contained in the 2013 Report and also to take account of certain exceptions to copyright permitted by the InfoSoc Directive ... including the possibility of non-commercial text and data mining (TDM).

The Bill in fact contains a number of proposals, including a proposal for an Irish TDM exception.

An Irish text and data mining exception

The reference to the InfoSoc Directive is a reference to the possibility of relying on the research exception within Article 5(3)(a) of the InfoSoc Directive to introduce a TDM exception as part of a new section 53A in the Irish Act.

This is indeed something that the Review Committee proposed in its Report.

Similarly to UK law, also the Irish TDM exception would be available to persons who have lawful access to a work solely for the purpose of research for a non-commercial purpose, and provided that sufficient acknowledgment is provided.

The central aspects of the proposal are the limitation to non-commercial research, the beneficiaries of the exception, the use of the copies made, and safeguards against contractual and technological override.

Non-commercial uses

Starting from the first aspect, limitation to non-commercial uses is not surprising, as this appears imposed by Article 5(3)(a) of the InfoSoc Directive itself ("use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved").

How the beneficiary of
a copyright exception feels

Beneficiaries of the exception

What is probably more interesting is the fact that the Irish proposal would not limit the catalogue of beneficiaries of the TDM exception. 

While this would be in line with UK law (section 29A of the Copyright, Designs and Patents Act), it would be quite a different approach from the one that the EU Commission has advanced with its proposal for a mandatory TDM exception under Article 3 of the draft Directive on copyright in the Digital Single Market [on the EU proposal see further here and here]. 

The EU proposal would be in fact only available to 'research organisations', although the Commission itself in its Impact Assessment accompanying the proposal for a directive noted how TDM practices are still a "nascent tool" for research carried out by those organisations that would be the only beneficiaries of the exception.

It may be worth recalling that at the time of discussing the introduction of a TDM exception into UK law, UK Government held the view that no restrictions should be imposed on the beneficiaries of the resulting exception, as long the work used to make a copy for text and data analysis research is one to which the relevant person has lawful access. Although UK Government acknowledged "that some publishers take an active role in developing text and data analytic technologies, and that some offer contracts that support the use of these technologies", "under current conditions, research projects may in some cases require specific permissions from a large number of publishers in order to proceed", and that this "is in some cases an insurmountable obstacle, preventing a potentially significant quantity of research from taking place at all". 

UK Government further noted that "[t]he copying involved in text and data analytics is a necessary part of a technological process, and is unlikely to substitute for the work in question (such as a journal article). It is therefore unlikely that permitting mining for research will of itself negatively affect the market for or value of copyright works. Indeed, it may be that removing restrictions from analytic technologies would increase the value of articles to researchers".

Copies?

Copying and availability of copies

Another aspect of the Irish proposal is that a copy made for the purpose of non-commercial research of a work which was, at the time when the copy was made, available without an access restriction would not be regarded as infringing, irrespective of whether that work continues to be so available after that time.

In any case, the draft exception requires that the copy made: (1) is not transferred to any other person, except where the transfer is authorised by the copyright owner; and (2) is not used for any purpose other than non-commercial research.

Finally, the exception provides that where the publication of the results of a computational analysis includes the reproduction of extracts from the work, such inclusion shall constitute inclusion in an incidental manner [and be, therefore, regarded as non-infringing] if the extracts are not more than are reasonably necessary to explain, or to assist in explaining, the results of the analysis.

Safeguards

Unlike its UK counterpart, the Irish exception does not contain an express reference to the prohibition of contractual override. The reason for this omission is not that contractual override is allowed, but rather that the Irish Copyright Act (section 2(10)) sets a general prohibition of contractual override: "Where an act which would otherwise infringe any of the rights conferred by this Act is permitted under this Act it is irrelevant whether or not there exists any term or condition in an agreement which purports to prohibit or restrict that act."

In addition, the provision would be also protected against technological override. In fact section 374 (also subject to reform) would provide that where a technological protection measure has prevented a person from undertaking in respect of a work the permitted act, the complainant may request the owner or licensee of the rights in that work to provide an effective means of carrying out that act. That provision also states that where the beneficiary is legally entitled to access the protected work or subject-matter concerned, the rightsowner or licensee shall make available to the beneficiary the means of benefiting from the permitted act, save where other copies of such work or other subject-matter have been made available to the public on reasonable and agreed contractual terms by, or with the authority of, the rightsowner, in a form which does not prevent or unreasonably restrict the beneficiary from undertaking the permitted act.

Comment

It is an intriguing - to say the least - timing for the introduction of a national TDM exception, especially if one considers that the EU exception - when adopted - would be mandatory for all EU Member States to transpose into their own legal systems. 

Perhaps the Irish move will also serve to orientate the debate that is currently taking place at the Council and European Parliament levels regarding the scope and beneficiaries of an EU TDM exception, as well the need to guarantee that the exception - once introduced - is appropriately safeguarded against contractual or technological override.