Last December the European Commission published a Communication on Modernising Copyright Law. The Communication outlined a number of important steps towards a more modernised and pan-European copyright infrastructure. Unfortunately, while moving in the right direction, the proposal on the text and data mining of Big Data does not reflect the realities of our economy as it is currently only for “public research organisations”. Given the economic importance of data driven innovation creating legal certainty for commercial organisations is equally vital.
Why is Big Data Important?
Big data technology and services are expected to grow worldwide at a compound annual growth rate of 40% – about 7 times that of the ICT market overall. In the UK alone, it is predicted the number of Big Data specialists working in large firms will increase by more than 240% over the next five years.
Many European and Europe-based companies ranging from technology SMEs in Berlin and London, through to companies like Autonomy /Hewlett Packard, IBM, SAS and Microsoft are currently mining Big Data. European governments, manufacturers as well as scientific researchers are also mining Big Data for many different commercial, scientific and policy reasons. This is why the European Commission’s proposal on text and data is so important to get right.
Big Data, Copyright and Database Laws
In order to analyse large amounts of digital information, computers need to copy the information in the first place. Because computers copy information as part of the analytical process, both European Copyright and Database law regulate the activities of organisations and individuals mining Big Data.
It is perfectly legal for human beings in a company or university across Europe to use pen and paper to analyse third party information on the World Wide Web or medical journals stocked by a university. If however they use a computer to perform exactly the same task they are breaking the law.
Big Data and Copyright and Database Law Internationally
Technology leaders like the United States, South Korea, Israel and Taiwan allow any organisation to mine Big Data that they have legal access to that belongs to a third party, under the legal copyright doctrine of Fair Use. Japan was the first country in the world to introduce a specific copyright exception for Big Data in 2010.
Fair Use allows data mining by computers because it does not compete with the purpose for creating the information in the first place. For example analysing medical articles that a university has bought for evidence of a link between a specific cancer and particular enzyme does not undermine the sale of the publication. In fact the mining activity would not be possible without the sale of the journals in the first place.
Similarly the analysis of tens of thousands of websites by government to establish the size of its black economy, or analysis by an SME of the open web in order to estimate the potential size of its client’s market has nothing to do with the reason why each individual website is created.
Europe is lagging behind the rest of the world. Other than the UK, no European Union Member State has modernised its copyright laws to legalise the mining of Big Data. Only in the UK can a government, university or hospital lawfully mine information it has access to. However because of the European Copyright and Database Directives, even in the UK the activities of a commercial company like a technology SME or a pharmaceutical company mining Big Data on the open web are still unlawful. This is because they are commercial activities.[1]
What should the European Parliament and Member States do?
Scientific and commercial innovation is being critically hampered because of the artificial distinction between commercial and non-commercial research that was newly introduced into European law by the 2001 Copyright Directive and the 1996 Database Directive.
Knowledge transfer from universities to the private sector to support innovation is something many European countries do very well.[2] To support its own strategy on data driven innovation the European Union should amend laws which inadvertently hinder the Big Data economy. The lack of an exception for mining Big Data and the new and artificial distinction between commercial and non-commercial research in EU Intellectual Property law are two crucial examples of how innovation in the EU is being hampered.
The European Commission proposal of December 2015 must go further and support knowledge transfer and modern data driven commerce. EU copyright law should:
- Allow commercial companies as well as non-commercial organisations to mine data to which they have lawful access;
- Ensure that the right to mine Big Data cannot be removed by contract;
- Ensure that software that hinders the lawful mining of Big Data can be removed in a proportionate and appropriate manner.
[1] The UK data mining exception sits “under” the non-commercial research exceptions that exist in the Copyright and Database Directives as EU law provides no other legal mechanism to accommodate Big Data. This is because EU copyright law is inflexible regarding exceptions and out of date when it comes to how technology is used.
[2] According to the World Economic Forum Report 5 EU countries (Finland, UK, Belgium, Sweden and Germany) ranked in the global top ten countries for transfer of knowledge, information and know-how from universities to industry.
David Prosser, Executive Director, RLUK
