Blog post by Rossana Ducato, Senior Lecturer in IT Law and Regulation, School of Law, University of Aberdeen and CREATe visiting scholar October-November 2023.
Somewhere in Germany, 5th of December 2023
I am on my way to Munich, leaving from a frozen Prague. It’s definitely winter, as the snowy landscape outside the window silently and unequivocally states.
Time flies… and my mind goes back to a warmer fall day of October. An unexpectedly blue sky and the tree crowns almost ready to turn gold were giving me a delightful welcome in Glasgow, almost anticipating the one I received in CREATe from its team members.
I knew already about their work (that’s why I came!) and collaborated with some of their crew. However, being immersed for two full months among the “CREATors” has been a great opportunity to witness their excellent research and the collaborative and healthy dynamics that lead this group to thrive.
I could not have hoped for a more inspiring kicking-off for my research leave. From my desk on the 5th floor in the futuristic Advanced Research Centre, I had the perfect conditions to work on my comparative research on the national implementations of the text and data mining exceptions in Europe. I have been working on TDM for a while now, and – at least before the advent of GenAI – it was quite a niche subject matter, with only a bunch of experts dealing with it directly. Martin Kretschmer and Thomas Margoni (now at KULeuven) were among these happy folks, with projects like OpenMinTed and ReCreating. Within this latter initiative, Ula Furgal also promoted the creation of a resource that would prove to be particularly helpful for my research, i.e. the ‘implementation page’ tracking down how the Copyright in the Digital Single Market has been transposed in the Member States. And, how not to mention Kris Erikson and his empirical research on technological protection measures! In other words, CREATe was the perfect crib to progress with my work.
So, what about my research project? It is a fortunate incidental idea that arose while I was completing a broader comparison of the Japanese, UK, and European frameworks for TDM. When dealing with the European section, I checked a few implementations and was surprised to find several interesting divergences in the transpositions. Hence, I thought it was worth exploring all the national implementations and going to the bottom of the issue.
The research is ongoing, so I can only share some preliminary results and reflections. However – and with no pretence of completeness – I can provide at least 5 anticipations.
- After more than 2 years from the deadline for implementation, we have 25 out of 27 transpositions (still waiting for Bulgaria and Poland). It is not unusual to see delays in the implementation of EU law. However, perhaps due to the spread of the pandemic (that inevitably changed the political priorities of Member States) and issues with the Directive itself (its art. 17 was contested before the CJEU), the CDSMD is now ‘long-overdue’.
- Some good news: a few MSs maintained or recognised a broader subjective scope of the TDM exception, at least with reference to the exception for scientific research. While Art. 3 CDSMD refers only to research organisations and cultural heritage institutions, Austria added to the list of beneficiaries also independent researchers operating for non-commercial purposes (along the lines of the German § 60d UrhG). Ireland kept its original exception, allowing anyone to pursue TDM for non-commercial research.
- The transposition of the provision concerning the protection of the exceptions against technological protection measures is a punctum dolens. Not all MSs have extended such – however limited and inefficient – protection to TDM. When they do it, almost one-third applies the unfamous subparagraph 4 of Art. 6(4) of the InfoSoc Directive (which was not recalled by the CDSMD for the new exceptions!). In practice, it means that when a work is offered on demand, the beneficiaries of the exception cannot rely on the countermeasure mechanisms that should allow them to use the work.
- As known, the rightsholders can contract out the exception at Art. 4 CDSMD in ‘an appropriate manner’. The Directive suggests using machine-readable means when the content is available online. Here, MSs went in three different directions: some do not specify any particular form for expressing the opt-out; others mention machine-readable means as an example to follow; and a further group requires only machine-readable means to contract out the exception properly. Adopting a common standard for the opt-out is one of the first things to address if we want to make Art. 4 workable for rightsholders and users online.
- Finally, a methodological note as a comparative legal scholar interested in legal design. This work has been incredibly rewarding yet challenging. As expected, it was quite demanding to work with 25 national laws. The first issue was to find the laws in their official and reliable form. I started with the national instruments transposing the Directive, communicated to the Commission, and published in EurLex. However, sometimes, the list was quite heterogeneous, containing references that were not necessarily connected to the implementation of the CDSMD. In most of the cases, there was a direct and accessible link to the official national document; in some others, there wasn’t. It was then necessary to search for the transposing law on the official page of the MS’ Parliaments.
In some cases, there was an official translation in English, but it was the exception rather than the rule. I had to rely on my personal knowledge, automated translations (always manually checked), or external help for the most problematic cases. Access to the preparatory works was even more challenging, as not all MS published the relevant information in a way that was easy to retrieve. I was able to rely, however, helpful resources such as the already-mentioned CREATe implementation page and Communia’s DSM Directive Implementation Portal.
When the text was found and, where necessary, translated, the interpretative challenge began. To say it with a smile, I often felt like I was playing Battleships. I saw provisions that were reading like “This Section also applies to Arts. 1(a) subpara. 1, Art. 2-8, 10, 12, 16, 17, 18, 20, Chapter II-quater. However, computer programs are excluded” (I am making this up, but it is not that far from the reality). I spent hours to be sure how to read the provisions ‘in conjunction’ and extract the relevant rule. I do wonder why we keep making the law so unreadable (at least to a human).
Looking at the bright side, though, I see an interesting research potential for making the corpus of European IP law more accessible and ready to be used (including via TDM!). It will be very valuable to build a resource that would contain and make the laws (broadly understood) of the different Member States searchable. It will be useful for any comparative analysis, to check how national copyright law is evolving, or measure to what extent it is really harmonised.
These are some ideas that I developed while in CREATe, thanks to the interaction with its members. The formal and informal brainstorming sessions we had, the opportunity to attend their public lectures ranging from the history of copyright to the techno-capitalism of platforms, the dynamic environment attracting other visiting scholars (such as Friso Bostoen), and the convivial meetings organised on Thursday evening (thanks Aleks!) were all great ingredients for the famous food for thought.
The loudspeaker announces we are approaching Munich (late, ça va sans dire). Time to get off and head to the Max Planck. The research journey continues…