Naomi Korn

Report
Text/Data Mining
Potential Legal Issues
Naomi Korn
IP Consultant
naomi@naomikorn.com
Disclaimer: The contents of this presentation are for general advice and best
practice purposes only. They do not constitute legal advice and the author can
give no assurances, warranties regarding the accuracy, currency of applicability
in relation to specific circumstances. In such circumstances, professional legal
advice should be sought.
This presentation is licensed under a Creative Commons Attribution Share Alike
Licence 3.0 http://creativecommons.org/licenses/by-sa/3.0/
How High Can You Jump?
• Current legislative environment makes it nearly
impossible to legitimately carry out the processes
necessary for text/data mining without
permission or ideally an exception
• Strong likelihood of legal issues occurring in
association with all the processes associated with
data/text mining
• At almost every intersection along the text/data
journey, there are legislative and/or licensing
potholes and pitfalls that disrupt opportunities
CONTENT SUPPLY:
Contractual Restrictions
• Contractual clauses associated with the supply of articles etc can
place restrictions on the user
• Authors themselves may still assign rights or grant exclusive
licences which preclude them and/or their organisations from
text/data mining without additional permissions
• No provisions to prevent contractual clauses from over-riding
copyright exceptions even if we were to have an exception to
text/data mining
• Not abiding by contractual terms = Potential breach of contract and
infringement of copyright
• Even open access journals can present issues in terms of the
particular CC licence selected. I.e. licences with a “ND” restriction
can prevent adaptation and mining; CC licences in general (apart
from CC Zero) can lead to Attribution stacking if many articles
mined.
FORMAT OF CONTENT
• Format may preclude data/text mining i.e.
PDF
AND/OR
• technical protection measures may be used to
lock up access to content (reinforced by
contractual terms)
• NB: Remove of any Technical Protection
Measures = Infringement of copyright
COPYING OF CONTENT:
Legislative Restrictions
CDPA Section 28 A
Temporary copies exception is solely concerned with incidental and immediate
copying
But: Any copying which is a “consumption” of the work, temporary or not, requires
permissions from the rights holder
“…the exception is concerned with transient copies which have no value in themselves
and which do not prejudice the rights holder by interfering with the normal
exploitation of the work…” NLA v Meltwater (Court of Appeal) [2011] EWCA Civ
890
http://www.bailli.org/cgibin/markup_cgi?doc=/ew/cases/EWCA/Civ/2011/890.ht
ml
THIS MEANS THAT EVEN IN THE PROCESS OF A MACHINE MAKING A COPY OF AN
ARTICLE ETC FOR THE PURPOSES OF TEXT MINING, AN INFRINGEMENT IS TAKING
PLACE BECAUSE THERE IS INHERENT VALUE IN THE ULTIMATE COPYING OF THE
WORK!
PRESENTATION OF DATA
• Copyright infringement if more than just
facts?
• Presentation of collation of facts =
Infringement of Database Right?
• Even though unlikely infringement of
copyright in data mining, maybe issues
associated with breach of contract as well as
potential database rights arising
What do we need?
• Exception for text/data mining BUT ALSO:
– We need a holistic approach to legislative change as
recommended by Professor Hargreaves in this report
– Exception for data/text mining will be useless without:
• Provisions to prevent contract law from over-riding copyright
exception
• Provisions to prevent TPMs from over-riding copyright
exceptions
• Provisions to facilitate copying for preservation purposes
• Solutions for Orphan Works

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