The inexistence of an exclusive right of Text and Data Mining (TDM)

Abstract

The essay analyzes the provisions of the Copyright in the Digital Single Market Directive (Directive (EU) 2019/790: CDSMD) relevant to the so-called Text and Data Mining exception, in order to establish whether the need for an exception or a license as contemplated by Articles 3 and 4 CDSMD is always implicated for the carrying out of the ‘Text and Data Mining’ operations. On the basis of an interpretation aligned with the most recent case law of the European Court of Justice on the notion of reproduction (in particular, the Pelham decision), the negative conclusion is illustrated, and the thesis is presented that the reproduction of machine readable data shall not entail a reserved activity of reproduction or extraction as meant by the legal provisions of Articles 3 and 4 CDSMD. The author also argues that the automated analytical technique aimed at analysing text and data in digital form (i.e. the TDM activity according to the relevant definition), having ordinarily as an object machine readable data only, should not give rise in practice under ordinary circumstances to a problem of compliance with the copyright norms considered by Articles 3 and 4 CDSMD. The author also puts forward the argument that under EU law “data” do not form the subject matter neither of the rights of reproduction and extraction contemplated in articles 3 and 4 CDSMD nor of any other IP rights. On this basis, the article concludes by affirming the inexistence of an exclusive right of TDM.