Update 13 April 2014
“Q4. Does the term “electronic analysis” capture the range of analytical techniques used in scientific research?
…..“Electronic analysis” is a very broad term which has the advantage of covering not only present analytical techniques but also “future proofing” the exception as new techniques are developed. However, its broadness brings the risk of challenge in the courts to define the scope of the exception. For example, The International Association of Scientific, Technical & Medical Publishers http://www.stm-assoc.org/ have a much narrower definition of text and data mining (TDM) which aims to distinguish it from other “similar” procedures….
….On balance I feel that the retention of the broad term “electronic analysis” in the exception would be a step forward by the UK towards the need seen in section 5.23 of the Hargreaves Review for: “exploring with our EU partners a new mechanism in copyright law to create a built-in adaptability to future technologies which, by definition, cannot be foreseen in precise detail by today’s policy makers”….
However, I also feel that the broad concept of “electronic analysis” in the exception would be strengthened, given possible litigation to interpret the exception, by some reference to fair dealing within the exception. The problem here is that, as a new exception, fair dealing for data-analysis has not yet been defined. The Hargreaves Review considered text and data mining to be an example of “non-consumptive use” i.e. “ uses of a work enabled by technology which do not directly trade on the underlying creative and expressive purpose of the work” (Hargreaves Review sec. 5.24).
Rewording subsection (1) of the proposed section 29A to read
“(1) Where a person has lawful access to a copy of a copyright work, copyright is not infringed where that person makes a copy of the work for the purposes of carrying out an electronic analysis, which does not directly trade on the underlying creative and expressive purpose of the work, of anything recorded in the work provided that….” ……..would introduce this reference to fair dealing. ……….
…………Subsection (2) establishes that a copy made for these purposes may not be distributed or used for any purpose other than non-commercial research. Any such action infringes copyright. This protects the owners of rights in the copied works
Q5. Is this wording effective?
My problem with the proposed wording centres around whether citation/quotation from a copy made for data-analytic purposes is within the scope of “non-commercial research”. Scientist W uses data-analysis to carry out non-commercial research into X, this data-analysis highlights Paper Y which includes a result he wishes to cite in his own paper Z. Under the proposed amended exception for quotations, subject to fair dealing, this citation from paper Y in paper Z will be lawful.
If the scope of “non-commercial research” stretches from research to eventual publication of research outcomes there is no problem. Scientist W can use the copy of paper Y he obtained by data-analysis to extract the quotation from. However, if publication and citation is seen a separate activity from the original research then he can’t lawfully use the data-analysis copy to make a quotation from. Quotation would be a dealing with the copy for “a purpose other than non-commercial research” . Presumably he would have to lawfully acquire a separate copy and then make his citation from that. Which is a rather around the houses approach, not to mention a waste of good research time!
Full submission… (Word 2003 .doc file 83KB)