Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?

Author: Martin Senftleben

Abstract: Seeking to devise an adequate regulatory framework for text and data mining (TDM), countries around the globe have adopted different approaches. While considerable room for TDM can follow from the application of fair use provisions (US) and broad statutory exemptions (Japan), countries in the EU rely on a more restrictive regulation that is based on specific copyright exceptions. The EU approach leads to considerable complexity and legal uncertainty. The invocation of available exceptions depends on individual criteria, such as use for scientific research purposes and the absence of a rights reservation by copyright owners.

Surveying this spectrum of existing approaches, lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure compliance with the three-step test laid down in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty. An imbalanced, restrictive interpretation of the three-step test, however, can lead to an overly cautious approach that stifles TDM and makes broad inroads into the right to research – instead of establishing a proper balance between copyright protection and the right to research that supports TDM activities.

Against this background, the analysis raises the question whether international copyright law covers TDM activities at all. TDM does not concern a traditional category of use that could have been contemplated at the diplomatic conferences leading to the current texts of the Berne Convention, the TRIPS Agreement or the WIPO Copyright Treaty. It is an automated, analytical type of use that does not affect the expressive core of literary and artistic works. Arguably, TDM falls outside the scope of international copyright harmonization altogether. From this perspective, the discussion about compliance with international copyright norms is a nonissue. International copyright law does not limit the freedom of national policymakers to devise appropriate domestic solutions to reconcile copyright protection with the right to research that underlies TDM activities.

Citation: Senftleben, Martin, Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue? (April 12, 2022). Available at SSRN: https://ssrn.com/abstract=4134651