(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text_and_data_mining.
Text and data mining makes the processing of large amounts of information with a view to gaining new knowledge and discovering new trends possible.
Text and data mining technologies are prevalent across the digital economy; however, there is widespread acknowledgment that text_and_data_mining can, in particular, benefit the research community and, in so doing, support innovation.
Such technologies benefit universities and other research_organisations, as well as cultural_heritage_institutions since they could also carry out research in the context of their main activities. However, in the Union, such organisations and institutions are confronted with legal uncertainty as to the extent to which they can perform text_and_data_mining of content.
In certain instances, text_and_data_mining can involve acts protected by copyright, by the sui generis database right or by both, in particular, the reproduction of works or other subject matter, the extraction of contents from a database or both which occur for example when the data are normalised in the process of text_and_data_mining.
Where no exception or limitation applies, an authorisation to undertake such acts is required from rightholders.
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(11) The legal uncertainty concerning text_and_data_mining should be addressed by providing for a mandatory exception for universities and other research_organisations, as well as for cultural_heritage_institutions, to the exclusive right of reproduction and to the right to prevent extraction from a database.
In line with the existing Union research policy, which encourages universities and research institutes to collaborate with the private sector, research_organisations should also benefit from such an exception when their research activities are carried out in the framework of public-private partnerships. While research_organisations and cultural_heritage_institutions should continue to be the beneficiaries of that exception, they should also be able to rely on their private partners for carrying out text_and_data_mining, including by using their technological tools.
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(12) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. The term ‘scientific research’ within the meaning of this Directive should be understood to cover both the natural sciences and the human sciences. Due to the diversity of such entities, it is important to have a common understanding of research_organisations. They should for example cover, in addition to universities or other higher education institutions and their libraries, also entities such as research institutes and hospitals that carry out research.
Despite different legal forms and structures, research_organisations in the Member States generally have in common that they act either on a not-for-profit basis or in the context of a public-interest mission recognised by the State.
Such a public-interest mission could, for example, be reflected through public funding or through provisions in national laws or public contracts. Conversely, organisations upon which commercial undertakings have a decisive influence allowing such undertakings to exercise control because of structural situations, such as through their quality of shareholder or member, which could result in preferential access to the results of the research, should not be considered research_organisations for the purposes of this Directive.
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(13) Cultural heritage institutions should be understood as covering publicly accessible libraries and museums regardless of the type of works or other subject matter that they hold in their permanent collections, as well as archives, film or audio heritage institutions. They should also be understood to include, inter alia, national libraries and national archives, and, as far as their archives and publicly accessible libraries are concerned, educational establishments, research_organisations and public sector broadcasting organisations.
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(14) Research organisations and cultural_heritage_institutions, including the persons attached thereto, should be covered by the text_and_data_mining exception with regard to content to which they have lawful access. Lawful access should be understood as covering access to content based on an open access policy or through contractual arrangements between rightholders and research_organisations or cultural_heritage_institutions, such as subscriptions, or through other lawful means. For instance, in the case of subscriptions taken by research_organisations or cultural_heritage_institutions, the persons attached thereto and covered by those subscriptions should be deemed to have lawful access. Lawful access should also cover access to content that is freely available online.
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(15) Research organisations and cultural_heritage_institutions could in certain cases, for example for subsequent verification of scientific research results, need to retain copies made under the exception for the purposes of carrying out text_and_data_mining.
In such cases, the copies should be stored in a secure environment.
Member States should be free to decide, at national level and after discussions with relevant stakeholders, on further specific arrangements for retaining the copies, including the ability to appoint trusted bodies for the purpose of storing such copies. In order not to unduly restrict the application of the exception, such arrangements should be proportionate and limited to what is needed for retaining the copies in a safe manner and preventing unauthorised use.
Uses for the purpose of scientific research, other than text_and_data_mining, such as scientific peer review and joint research, should remain covered, where applicable, by the exception or limitation provided for in Article 5(3)(a) of Directive 2001/29/EC.
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