UK implements important exception for data mining

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A new set of regulations detailing small yet important changes to its copyright law have come into effect in the UK through the publication of the The Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014. This is part of a series of reforms that will be made in the coming weeks by the UK government as part of a set of reforms that will modernise copyright law. These include a much-needed reform that will finally allow people to make private copies of their CDs, and the creation of a parody exception. While most of the commentary will be justifiably directed to some of the more newsworthy changes to the law, the data mining comes to fill an important gap in the current fair dealing corpus.

The Regulations will include the following section to the Copyright, Designs and Patents Act 1988:

29A     Copies for text and data analysis for non-commercial research

(1) The making of a copy of a work by a person who has lawful access to the work does not infringe copyright in the work provided that—

(a)the copy is made in order that a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose, and
(b)
the copy is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise).

(2) Where a copy of a work has been made under this section, copyright in the work is infringed if—

(a)the copy is transferred to any other person, except where the transfer is authorised by the copyright owner, or
(b)
the copy is used for any purpose other than that mentioned in subsection (1)(a), except where the use is authorised by the copyright owner.

(3) If a copy made under this section is subsequently dealt with—

(a)it is to be treated as an infringing copy for the purposes of that dealing, and
(b)
if that dealing infringes copyright, it is to be treated as an infringing copy for all subsequent purposes.

(4) In subsection (3) “dealt with” means sold or let for hire, or offered or exposed for sale or hire.

(5) To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable.”

As it happens, this is close to what was suggested in a paper by Yours Truly and Diane Cabell entitled “Data Mining In UK Higher Education Institutions: Law and Policy” which dealt precisely with the problems presented to data mining for research purposes. In that paper we commented:

“As users of content mining through research, there are still too many grey areas in the legal issues surrounding the subject. It seems safe to assume that at present the copying of text for analytical purposes may be considered infringing if one reads current case law in the most restrictive and conservative manner possible. Content mining does not fall easily into existing exceptions and limitations to copyright, and the scope of protection under the database right is also unclear. Even when done for research purposes, the scope of fair dealing for research and personal study is too narrow. If the law were changed to grant the exception for text mining in accordance to the recommendation contained in the Hargreaves Review of Intellectual Property, then the situation would become much clearer, which would help HEIs to conduct content mining in a safer legal environment and without the fear of infringing any existing rights.”

It is heartening to see that this will finally be made into law, and that researchers conducting data mining operations which may produce important results and scientific advances will fall on the right side of the law.

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