(5) In the fields of research, innovation, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the existing Union rules on exceptions and limitations.
In addition, the optional nature of exceptions and limitations provided for in Directives 96/9/EC, 2001/29/EC and 2009/24/EC in those fields could negatively impact the functioning of the internal market.
This is particularly relevant as regards cross-border uses, which are becoming increasingly important in the digital environment.
Therefore, the existing exceptions and limitations in Union law that are relevant for scientific research, innovation, teaching and preservation of cultural heritage should be reassessed in the light of those new uses. Mandatory exceptions or limitations for uses of title='definition'>text_and_data_mining technologies, illustration for teaching in the digital environment and for preservation of cultural heritage should be introduced.
The existing exceptions and limitations in Union law should continue to apply, including to title='definition'>text_and_data_mining, education, and preservation activities, as long as they do not limit the scope of the mandatory exceptions or limitations provided for in this Directive, which need to be implemented by Member States in their national law.
Directives 96/9/EC and 2001/29/EC should, therefore, be amended.
- = -
(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as title='definition'>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 title='definition'>text_and_data_mining can, in particular, benefit the research community and, in so doing, support innovation.
Such technologies benefit universities and other title='definition'>research_organisations, as well as title='definition'>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 title='definition'>text_and_data_mining of content.
In certain instances, title='definition'>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 title='definition'>text_and_data_mining.
Where no exception or limitation applies, an authorisation to undertake such acts is required from rightholders.
- = -
(9) text and data mining can also be carried out in relation to mere facts or data that are not protected by copyright, and in such instances no authorisation is required under copyright law.
There can also be instances of title='definition'>text_and_data_mining that do not involve acts of reproduction or where the reproductions made fall under the mandatory exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC, which should continue to apply to title='definition'>text_and_data_mining techniques that do not involve the making of copies beyond the scope of that exception.
- = -
(10) Union law provides for certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of title='definition'>text_and_data_mining.
However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research.
Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access licences, the terms of the licences could exclude title='definition'>text_and_data_mining.
As research is increasingly carried out with the assistance of digital technology, there is a risk that the Union's competitive position as a research area will suffer, unless steps are taken to address the legal uncertainty concerning title='definition'>text_and_data_mining.
- = -
(11) The legal uncertainty concerning title='definition'>text_and_data_mining should be addressed by providing for a mandatory exception for universities and other title='definition'>research_organisations, as well as for title='definition'>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, title='definition'>research_organisations should also benefit from such an exception when their research activities are carried out in the framework of public-private partnerships. While title='definition'>research_organisations and title='definition'>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 title='definition'>text_and_data_mining, including by using their technological tools.
- = -
(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 title='definition'>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, title='definition'>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 title='definition'>research_organisations for the purposes of this Directive.
- = -
(14) Research organisations and title='definition'>cultural_heritage_institutions, including the persons attached thereto, should be covered by the title='definition'>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 title='definition'>research_organisations or title='definition'>cultural_heritage_institutions, such as subscriptions, or through other lawful means. For instance, in the case of subscriptions taken by title='definition'>research_organisations or title='definition'>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.
- = -
(15) Research organisations and title='definition'>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 title='definition'>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 title='definition'>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.
- = -
(17) In view of the nature and scope of the exception, which is limited to entities carrying out scientific research, any potential harm created to rightholders through this exception would be minimal.
Member States should, therefore, not provide for compensation for rightholders as regards uses under the title='definition'>text_and_data_mining exceptions introduced by this Directive.
- = -
(18) In addition to their significance in the context of scientific research, title='definition'>text_and_data_mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works or other subject matter falling outside the scope of the mandatory exception provided for in this Directive for title='definition'>text_and_data_mining for the purposes of scientific research and of the existing exceptions and limitations provided for in Directive 2001/29/EC.
At the same time, consideration should be given to the fact that users of title='definition'>text_and_data_mining could be faced with legal uncertainty as to whether reproductions and extractions made for the purposes of title='definition'>text_and_data_mining can be carried out on lawfully accessed works or other subject matter, in particular when the reproductions or extractions made for the purposes of the technical process do not fulfil all the conditions of the existing exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.
In order to provide for more legal certainty in such cases and to encourage innovation also in the private sector, this Directive should provide, under certain conditions, for an exception or limitation for reproductions and extractions of works or other subject matter, for the purposes of title='definition'>text_and_data_mining, and allow the copies made to be retained for as long as is necessary for those title='definition'>text_and_data_mining purposes.
- = -
(21) The exception or limitation provided for in this Directive for the sole purpose of illustration for teaching should be understood as covering digital uses of works or other subject matter to support, enrich or complement the teaching, including learning activities. The distribution of software allowed under that exception or limitation should be limited to digital transmission of software.
In most cases, the concept of illustration would, therefore, imply the use only of parts or extracts of works, which should not substitute for the purchase of materials primarily intended for the educational market.
When implementing the exception or limitation, Member States should remain free to specify, for the different types of works or other subject matter, in a balanced manner, the proportion of a work or other subject matter that can be used for the sole purpose of illustration for teaching.
Uses allowed under the exception or limitation should be understood to cover the specific accessibility needs of persons with a disability in the context of illustration for teaching.
- = -
(22) The use of works or other subject matter under the exception or limitation for the sole purpose of illustration for teaching provided for in this Directive should only take place in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations or teaching activities that take place outside the premises of educational establishments, for example in a museum, library or another title='definition'>cultural_heritage_institution, and should be limited to what is necessary for the purpose of such activities. The exception or limitation should cover both uses of works or other subject matter made in the classroom or in other venues through digital means, for example electronic whiteboards or digital devices which might be connected to the internet, as well as uses made at a distance through secure electronic environments, such as in the context of online courses or access to teaching material complementing a given course.
Secure electronic environments should be understood as digital teaching and learning environments access to which is limited to an educational establishment's teaching staff and to pupils or students enrolled in a study programme, in particular through appropriate authentication procedures including password-based authentication.
- = -
(56) For the purposes of this Directive, it is necessary to define the concept of ‘ title='definition'>press_publication’ so that it only covers journalistic publications, published in any media, including on paper, in the context of an economic activity that constitutes a provision of services under Union law.
The title='definition'>press_publications that should be covered include, for instance, daily newspapers, weekly or monthly magazines of general or special interest, including subscription-based magazines, and news websites. Press publications contain mostly literary works, but increasingly include other types of works and other subject matter, in particular photographs and videos. Periodical publications published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to title='definition'>press_publications under this Directive.
Neither should that protection apply to websites, such as blogs, that provide information as part of an activity that is not carried out under the initiative, editorial responsibility and control of a service provider, such as a news publisher.
- = -
(59) The protection granted to publishers of title='definition'>press_publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject matter independently from the title='definition'>press_publication in which they are incorporated.
Publishers of title='definition'>press_publications should, therefore, not be able to invoke the protection granted to them under this Directive against authors and other rightholders or against other authorised users of the same works or other subject matter.
That should be without prejudice to contractual arrangements concluded between the publishers of title='definition'>press_publications, on the one hand, and authors and other rightholders, on the other.
Authors whose works are incorporated in a title='definition'>press_publication should be entitled to an appropriate share of the revenues that press publishers receive for the use of their title='definition'>press_publications by title='definition'>information_society_service providers. That should be without prejudice to national laws on ownership or exercise of rights in the context of employment contracts, provided that such laws are in compliance with Union law.
- = -
(60) Publishers, including those of title='definition'>press_publications, books or scientific publications and music publications, often operate on the basis of the transfer of authors' rights by means of contractual agreements or statutory provisions. In that context, publishers make an investment with a view to the exploitation of the works contained in their publications and can in some instances be deprived of revenues where such works are used under exceptions or limitations such as those for private copying and reprography, including the corresponding existing national schemes for reprography in the Member States, or under public lending schemes. In several Member States, compensation for uses under those exceptions or limitations is shared between authors and publishers. In order to take account of this situation and to improve legal certainty for all parties concerned, this Directive allows Member States that have existing schemes for the sharing of compensation between authors and publishers to maintain them.
That is particularly important for Member States that had such compensation-sharing mechanisms before 12 November 2015, although in other Member States compensation is not shared and is due solely to authors in accordance with national cultural policies. While this Directive should apply in a non-discriminatory way to all Member States, it should respect the traditions in this area and not oblige Member States that do not currently have such compensation-sharing schemes to introduce them.
It should not affect existing or future arrangements in Member States regarding remuneration in the context of public lending.
- = -
(68) Online content-sharing service providers should be transparent with rightholders with regard to the steps taken in the context of cooperation.
As various actions could be undertaken by title='definition'>online_content-sharing_service_providers, they should provide rightholders, at the request of rightholders, with adequate information on the type of actions undertaken and the way in which they are undertaken.
Such information should be sufficiently specific to provide enough transparency to rightholders, without affecting business secrets of title='definition'>online_content-sharing_service_providers. Service providers should, however, not be required to provide rightholders with detailed and individualised information for each work or other subject matter identified.
That should be without prejudice to contractual arrangements, which could contain more specific provisions on the information to be provided where agreements are concluded between service providers and rightholders.
- = -