Status of Text and Data Mining (TDM) Exceptions in the Baltic States

17.06.2024 Status of Text and Data Mining (TDM) Exceptions in the Baltic States

What is TDM?

Text and data mining (TDM) refers to a research technique to collect information from large amounts of digital data through automated software tools. This technique could be used to train artificial intelligence (AI) applications. The mining involves some copying of text or data which can be protected by intellectual property rights (e.g., copyright and neighbouring rights).

 

What is TDM exception?

Continental-European copyright tradition is strongly author-centric and gives the author extensive exclusive rights to allow or deny others the use of their work. At the same time, members of society have other important rights, such as the right to education and freedom of speech, and there is also a need to encourage innovation. A balance must be found between these rights and interests. For this purpose, certain restrictions (called the ‘free use of the work’ or the ‘copyright exceptions’) have been placed on authors’ exclusive rights.

In 2019, Directive on Copyright in the Digital Single Market (DSMD) introduced new copyright exceptions – TDM provisions for not-for-profit scientific research (Art 3) as well as for other purposes, including commercial activities (Art 4). These new provisions aim to unlock TDM potential for all purposes. In short, if there is any act of reproduction of copyright-protected works in the context of a TDM process, those acts are exempted, and the users do not need the author’s or rightholder’s consent unless there is an opt-out by the rightholder (i.e., the rightholder has reserved the right to perform TDM activities in an ‘appropriate manner’).

Thus, any AI company is allowed to use copyright-protected works in the EU, unless rightholders have reserved this use. This ‘opt-out’ approach has been criticised by the creators due to putting the burden of action and proof on the rightholders instead of AI companies. However, this ‘opt-out’ does not have to be justified and may be expressed by any means (including unilateral declaration or contractual agreement), except in case the copyrighted content has been available to the public online. In the latter case, the ‘appropriate manner’ for the reservation should be machine-readable format, which may include metadata as well as website terms and conditions.

Implementation of TDM exemptions in the Baltic States

These TDM provisions are mandatory for the Member States. Estonia (on 7 January 2022), Latvia (on 5 April 2023) and Lithuania (on 1 May 2022) have implemented the relevant DSMD provisions into their national copyright laws. The national laws implementing DSMD Article 4 closely correspond with the text of the Article. As a side note, Member States were given until 7 June 2021 to transpose the DSMD into national law. Unfortunately, all the Baltic States failed to follow this deadline.

EST LAT LIT

§ 192. Free use of work for the purpose of TDM for purposes other than scientific research

(1) Without prejudice to the application of § 19of this Act, reproduction of lawfully accessible works for the purposes of TDM is allowed without the authorisation of the author and without payment of remuneration.

(2) The author may expressly and in an appropriate manner reserve the free use provided in subsection 1 of this section, including by machine-readable means in the case of content made publicly available online.

(3) Copies of works made in compliance with subsection 1 of this section may be stored for as long as it is necessary for the purposes of TDM.

Section 21.1 Use of a Work for TDM

(1) In compliance with the provisions of Section 18, Paragraph two of this Law, it is permitted to reproduce lawfully accessible works in order to perform TDM.

(2) The copies of works made in accordance with Paragraph one of this Section may be kept as long as required for TDM purposes.

(3) Copyright holders may prohibit use of works in the manner specified in Paragraph one of this Section by informing thereof clearly in an appropriate manner. A prohibition to use works that are accessible to the general public online shall be communicated in a machine-readable form, including through metadata.

Article 222. Use of works for TDM purposes

1. Reproduction of lawfully available works for the purposes of TDM shall be permitted without the authorisation of the author of the work or of any other rightholder of that work and without payment of royalties. Reproduced material may be retained for as long as is necessary for TDM purposes.

2. The limitation of economic rights provided for in paragraph 1 shall apply only where the rightholders do not expressly indicate by appropriate means (computer-readable means in the case of content available to the public on the Internet) that they reserve the right to use those works.

 

Position of collective management organisations (CMOs) in the Baltic States

The application of TDM exception to generative AI commercial applications is uncertain. The Society of Audiovisual Authors (SAA) has called on the European Union and its Member States to clarify that the TDM exception does not apply to generative AI and that the right to authorise or prohibit such a use remains with the authors of protected works and apply in a generative AI context. SAA has highlighted three reasons:

  • generative AI was not the target of the TDM exception during the discussion and adoption of the DSMD,
  • the impracticality of the opt-out option – there are no generally recognised standards or protocols for the machine-readable expression of the reservation of rights, and
  • the violation of the three-step-test (i.e., copyright exceptions only apply in certain special cases which do not conflict with the normal exploitation of the copyright-protected works and do not unreasonably prejudice the legitimate interests of the right holders). According to public appeal of several US authors’ organisations, allowing TDM exceptions to be applied to copying for ingestion and reuse by generative AI systems constitutes a significant violation of the obligations of EU Member States as parties to the Berne Convention: the exceptions do not satisfy the three-step-test of Article 9.2 of the Convention as copying copyright protected-works for AI development directly conflict with the normal exploitation of these works and unreasonably prejudice the legitimate interests of authors.

According to SACEM/GEMA extensive study “AI and Music” (a total of n=15,073 people participated):

  • despite the various fields of applications and potentials for AI in music, 64% of the questioned music authors think that the risks of AI use outweigh its possible opportunities, and only 11% believe that the opportunities outweigh the risks;
  • 90% of the questioned music authors and creators think that rightholders must be asked for permission before their works are used as input for AI applications.

Even if the TDM exception applies to AI applications, the most efficient way to implement and control opt-out option seems to be via CMOs. Two Baltic CMOs have already made their opinions public in 2024 as well as issued reservations to the TDM exception.

 

EST

LAT

LIT

Applicability of TDM exception

Estonian Authors’ Society (EAÜ) has stated that the providers and developers of AI systems and platforms must pay fair remuneration to authors and publishers for the use of their protected works for machine-learning training purposes; EAÜ only permits AI system and tool developers to use the musical works and the works of visual arts of its members for this purpose after relevant license is acquired from EAÜ.

The Copyright and Communications Consulting Agency/Authors’ Union of Latvia (AKKA/LAA) has stated that the use of copyrighted works without permission is illegal and there is no exception for AI.

No statements made

Opt-out

EAÜ has expressly reserved the right to engage in TDM the works represented by EAÜ.

No reservations made

No reservations made

 

Final words

The Lithuanian Minister of Culture Mr Simonas Kairys has emphasized the importance to address the challenge enabling the cultural and creative sectors to actively use AI while ensuring the protection of copyright and fair compensation of authors for training AI. Indeed, there is urgent need to continue the copyright debate for finding equitable regulatory approaches or interpretations at the EU or Member State level which put the creators at the centre of innovation, and practical solutions with the AI developers. 

 

Other relevant information on AI act

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