Kulturudvalget 2022-23 (2. samling)
L 125 Bilag 11
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Prof. Avv. Eleonora Rosati, PhD (EUI), LLM (Cantab), Laurea (Florence)
[email protected]
Ms. Karen Rønde
Danske Pressepublikationers Kollektive Forvaltningsorganisation
c/o Berlingske Media A/S
Pilestræde 34
1112 København K
Denmark
By email to: [email protected]
Dear Karen,
RE:
Interplay between Articles 3 and 15 CDSMD
I have been requested to provide a legal opinion regarding the interplay between the text and data
mining (‘TDM’) exception in Article 3 and the press publishers’ right in Article 15 of Directive
2019/790 (‘CDSMD’).
More specifically, I have been asked to advise on the potential risk that the information society
service providers (‘ISSPs’) at which Article 15 is addressed might indirectly benefit from the TDM
exception through partnerships with research organizations (‘ROs’) and cultural heritage
institutions (‘CHIs’) – that is: the beneficiaries of Article 3 – with the result that they could use
press publishers’ content without any authorization from them.
I have been also informed that Denmark is in the process of completing its transposition of the
CDSMD.
While the analysis developed here is from the perspective of EU law, recommendations will be
provided on how Article 3 CDSMD could be implemented into national law in a way that reduces
the risk that ISSPs may seek to rely on that TDM exception to circumvent their licensing obligation
under Article 15 CDSMD.
The following issues are tackled in the analysis below:
1. How and to what extent private partners of ROs and CHIs can rely on the TDM exception
under Article 3 CDSMD;
2. Whether a national legislature can limit the applicability of Article 3 CDSMD solely to EU-
based private partners;
3. Whether and to what extent the possibility for private partners to benefit from Article 3
CDSMD can limit the effectiveness of Article 15 CDSMD and the fostering of a licensing
market for press content.
A
summary and specific recommendations
are subsequently provided in the final part of this
document.
***
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1.
How and to what extent private partners of ROs and CHIs can rely on the TDM
exception under Article 3 CDSMD
As a preliminary point and among other things, it is relevant to note that:
i.
ii.
iii.
iv.
The beneficiaries of Article 3 CDSMD are specifically ROs and CHIs ;
The availability of the exception is premised on the lawful access to the protected content
in relation to which TDM activities are to be undertaken;
The purpose of the acts of extraction and reproduction must be scientific research;
The exception in Article 3 covers acts of extraction and reproduction in relation to
different types of works and protected subject-matter.
All the points above are relevant to define the modalities and extent to which private partners,
including ISSPs, may benefit from Article 3:
i. Beneficiaries
Recital 11 CDSMD states that, in line with the existing EU research
policy, which encourages universities and research institutes to
collaborate with the private sector, ROs (but the same is true of CHIs )
should benefit from the exception in Article 3 also when their research
activities are carried out in the framework of public-private partnerships.
In such cases, ROs continue to be the beneficiaries of the exception, but
their private partners could carry out TDM activities, including by using
their own technological tools.
All this said, in situations in which commercial undertakings have a
decisive influence
on a RO, which allows such undertakings to exercise
control because of
structural situations,
e.g., through their qualification
as shareholders or members, which could result in preferential access to
the results of the research, Article 3 shall not apply (recital 12).
In these instances, in fact, a RO shall
not
be considered a ‘research
organization’ for the purposes of Article 3. The same appears to apply to
CHIs.
ii. Lawful access
requirement
In line with Article 7(1) CDSMD, it is not possible for rightholders to
opt-out or restrict the availability of the exception in Article 3 CDSMD.
This said, the notion of ‘lawful access’ (recital 14) is to be intended as
referring to content the access to which has been secured through a
licence/subscription or for which no restrictions are in place.
Press publishers appear prevented from restricting TDM through
terms of service or other means.
Such a conclusion follows from both
(a) recital 14, which removes the possibility for rightholders to restrict
the doing of TDM activities in relation to content that ROs and CHIs
have secured lawful access to, e.g., through machine-readable means,
including metadata and terms and conditions of a website or a service (cf
recital 18 and Article 4(3)), and content that is technically freely accessible
online, and (b) the very wording of Article 7(1) CDSMD.
2
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In turn, if ROs and CHIs have, e.g., purchased a subscription to a press
publisher’s content, they can undertake the acts allowed under Article 3
CDSMD, including in the context of partnerships with third parties.
iii. Scientific
research purpose
The notion of ‘scientific research’ is not defined in the CDSMD. Recital
12 merely clarifies that the term ‘scientific research’ encompasses both
the
natural sciences and the human sciences.
In turn, in line with consistent case law of the Court of Justice of the
European Union (‘CJEU’)
1
as well as the understanding of TDM (Article
2, No 2)
2
, it appears likely that ‘scientific research’ must be understood
in light of its
ordinary meaning.
As such, the concept may be intended
as encompassing any activity aimed at generating information that allows
to uncover new knowledge or insights that are based on or characterized
by the methods and principles of science.
Importantly, the
end goal
of the scientific research activity at issue, e.g.,
whether it is aimed at generating a profit or is used for profit-making
purposes,
might not be decisive.
3
iv. Acts covered
The exception in Article 3 in any event only applies specifically to the
acts listed in the provision, that is: extraction and reproduction in relation
to copyright works and other protected subject-matter,
not also the
subsequent communication/making available to the public of the
results
of TDM.
2.
Whether a national legislature can limit the applicability of Article 3 CDSMD solely
to EU-based private partners
The CDSMD does not tackle specifically whether the beneficiaries of Article 3 must be based in
the EU, nor does it address the situation of their private partners. Al this said, it appears that:
-
The
beneficiaries of the exception may need to be established in the EU:
in light of
the wording of Article 9, which is specifically referred to CHIs under Article 8 CDSMD,
there appears to be an implied understanding that, also under Article 3, a CHI must be
established in the EU to be eligible for the application of the exception therein. The same
may apply to ROs.
-
However, the
private partners of ROs and CHIs may
not
need to be established in
the EU.
Such an interpretation appears supported by the consideration that where there
is a requirement of an EU establishment (including to benefit, e.g., from Article 15
protection) the CDSMD expressly says so. If one takes the exception for preservation of
cultural heritage under Article 6, recital 28 appears to limit the possibility for CHIs to rely
Constantin Film,
C-264/19, EU:C:2020:542, at [29], referring to
Spiegel Online,
C-516/17, EU:C:2019:625, at [65] and
Tom Kabinet,
C-263/18, EU:C:2019:1111, at [38] and the case law cited therein. See also
Atresmedia,
C-147/19, EU:C:2020:935, at [33], regarding
such an approach as “settled case-law”.
1
See also the Impact Assessment accompanying the EC Proposal for what would become the CDSMD, available at https://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:52016SC0301, §4.3.1.
2
Contra
I Stamatoudi – P Torremans, ‘The Digital Single Market Directive’, in I Stamatoudi – P Torremans (eds),
EU Copyright
Law. A Commentary
(Edward Elgar:2021), 2
nd
edn, §17.94.
3
3
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on third parties to undertake the activities covered by that provision if the third party (or
the CHI) is not established in the EU.
All the above said, it is important to note that the CDSMD does not define the
notion of
‘establishment’.
Thus, the concept is to be intended in accordance with general EU law principles
and CJEU case law. The concept of ‘establishment’ has been broadly construed and generally
implies the permanent or semi-permanent settlement of a person or a company for economic
reasons.
4
In the case of legal persons, this means that ‘establishment’ is not limited to the main
seat, branch or agency, but also encompasses the likes of “an office managed by the undertakings’
own staff or by a person who is independent but authorized to act on a permanent basis for the
undertaking”
5
or even presence in a Member State through commercial agreements with local
operators.
6
In any case, the notion of establishment entails a “permanent presence in the host
Member State and, where immovable property is purchased and held, that property should be
actively managed”.
7
3.
Whether and to what extent the possibility for private partners to benefit from
Article 3 CDSMD can limit the effectiveness of Article 15 CDSMD and the fostering of a
licensing market for press content
It should be noted at the outset that the scope of application of Articles 3 and 15 CDSMD overlaps
in part,
in the sense that both provisions concern
acts of reproduction.
This said,
Article 15 goes
beyond Article 3
because it also covers acts of making available to the public of press publications.
Thus, the possibility for ISSPs to benefit indirectly from Article 3 through partnerships with ROs
and CHIs could serve to circumvent the application of Article 15 insofar as
acts of reproduction
of press publications
are concerned.
This said, as detailed above at §1, acts of reproduction under Article 3 are allowed if (i) the RO or
CHI at issue has lawful access to the content at issue and (ii) they are justified by the purpose of
scientific research. In turn:
-
The situations in which an overlap may exist between Articles 3 and 15 is where
both
conditions (i) and (ii) above are satisfied
and, in any event,
-
The TDM exception
does not cover subsequent acts of making available.
Hence, it
appears that the licensing obligation under Article 15 shall not be trumped by the exception
under Article 3 if the ISSP at issue make available to the public the results of TDM,
provided that such results incorporate a press publication or part thereof.
The same conclusion applies to, e.g., news articles or photographic content incorporated in a press
publication and protected by rights other than Article 15, notably copyright and other related rights
(e.g., the related right for non-original photographs, as allowed under Article 6 of the Term
Directive 2006/116).
4
5
6
7
Very recently, see Opinion of Advocate General Szpunar in
LEA,
C-10/22, EU:C:2023:437, fn 39.
Commission of the European Communities v Federal Republic of Germany,
Case 205/84, EU:C:1986:463, at [21].
Gambelli,
C-243/01, EU:C:2003:597, at [14].
Centro di Musicologia Walter Stauffer,
C-386/04, EU:C:2006:568, at [19].
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***
Summary
1.
Private partners of ROs and CHIs benefitting from Article 3
-
Private partners may indirectly benefit from the TDM exception
in Article 3 insofar
as (a) ROs and CHIs have lawful access to the content to be extracted/reproduced and (b)
they do not exercise a decisive influence on them. In any event, Article 3 only applies to
acts of extraction and reproduction.
-
In turn, this may suggest that – in the context of, e.g., AI training processes – a distinction
needs to be made between
input and output text/content:
o
The extraction and use of the input text/data may be covered by the exception
under Article 3 but
o
The output, e.g., an AI-generated news article would not
if
such output
incorporates third-party protected content, including press publishers’ works and
other protected subject-matter.
2.
EU establishment requirement for private partners
-
The CDSMD is silent on the question whether the private partners of the beneficiaries of
Article 3 need to be
established in the EU.
It is arguable that
no such requirement
does
subsists.
-
This said, even admitting that the existence of an EU establishment requirement, the
notion of establishment has been interpreted loosely and broadly, with the result that for
a third-country ISSP it might be possible to
circumvent
quite easily any such requirement
imposed at the national level by, e.g., simply setting up an office in the EU. The most
relevant third-country ISSPs have done so already.
3.
Interplay between Articles 3 and 15
-
Articles 3 and 15 CDSMD overlap
in part.
While both provisions concern
acts of
reproduction, Article 15 goes beyond Article 3,
in that is also covers acts of making
available to the public of press publications. All this means that:
o
The possibility for ISSPs to benefit indirectly from Article 3 through partnerships
with ROs and CHIs has the
potential
to circumvent the application of Article
15 only insofar as acts of reproduction of press publications are concerned.
However,
o
The licensing obligation under Article 15 shall not be trumped by the exception
under Article 3 in the event that the ISSP at issue make available to the public the
results of TDM, provided that such results incorporate a press publication or part
thereof.
***
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Recommendations: How a national legislature can transpose Article 3 CDSMD in such a
way that the risk that Article 15 is bypassed via Article 3 is reduced
In light of all that precedes, in order to reduce the risk that a national transposition of Article 3
CDSMD might negatively affect the application of Article 15, it is recommended that the following
aspects are considered:
Recommendation
(1) The resulting national transposition of
Article 3 should
explicitly
only
cover acts
restricted by the exclusive rights listed
therein, that is acts of extraction and
reproduction.
In this sense, it might be useful to contrast the
EU text with, e.g., the Italian transposition of
Article 3, which expressly allows the
subsequent “communication to the public of
the research results if expressed within new
original works”.
8
Such a broadening of the
exception under Article 3 is likely to be
regarded as being in breach of EU law.
9
The
CJEU itself has clarified that a national
exception or limitation cannot exceed what is
allowed at the EU level.
10
Press publishers in Denmark should warn
national lawmakers against the risk of
exceeding the scope of the EU exception.
(2) The
language of the preamble to the
Limited.
CDSMD
– specifically the parts in which it is
stressed that the beneficiaries of Article 3
remain ROs and CHIs (recital 11) and that the
exception shall not apply if a commercial
undertaking has a decisive influence on a
research organization (recital 12) – could be
made part of the positive language of the
resulting national provision.
All this could be useful in guiding Danish
authorities, including courts, in the correct
8
9
Potential challenges
Limited. Despite that an exception covering
acts restricted by copyright and related rights
other than those specifically listed in Article 3
is arguably in breach of EU law, some
(academic) commentators have however
supported such approaches.
11
Article 70-ter(1) Italian Copyright Act.
There are multiple instances in which the CJEU has preempted divergences in national law, including having regard to exclusive
rights and exception and limitations. The principle of EU preemption has been codified in Article 2(1)–(2) TFEU (see K Lenaerts
– P Van Nuffel – T Corthaut,
EU Constitutional Law
(Oxford University Press:2021), §5.026).
10
11
Recently,
Spiegel Online,
C-516/17, EU:C:2019:625, and
Funke Medien,
C-469/17, EU:C:2019:623.
See, e.g., B Calabrese, ‘Scientific TDM exception and communication to the public: did Italians do it better … or at least not
worse?’ (2022) 17(5) Journal of Intellectual Property Law & Practice 399.
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interpretation and application of the national
provision resulting from the transposition of
Article 3.
(3) Lacking a definition in the CDSMD of the
notion of ‘scientific research’,
the resulting
national provision might adopt a narrow
definition of what qualifies as scientific
research, bearing in any case in mind that the
CDSMD expressly refers to both scientific and
social sciences research.
Such an approach would be in line with the
transposition approaches in several Member
States with regard to notions not defined in the
CDSMD (e.g., the notion of ‘very short’
extract under Article 15), but has the potential
to be challenged, specifically considering that
over time that CJEU has consistently held that
notions in EU legislation that make no
reference to EU Member States’ laws should
be intended (i) as autonomous concepts of EU
law, which are to be applied uniformly across
the EU and (ii) in accordance with their
everyday meaning.
12
Such an approach might be challenging to
implement successfully, mostly because it
would be regarded as defeating the very
purpose of Article 3, as well as the reason why
it was adopted in the first place. That provision
was indeed proposed to broaden the
possibilities under Article 5(3)(a) of Directive
2001/29 (‘InfoSoc Directive’), which some
EU Member States had relied upon before the
adoption of the CDSMD to introduce their
own scientific TDM exceptions.
14
(4) While Article 3 CDSMD is not limited to
non-commercial TDM,
it might be
suggested that the national transposition
thereof should provide for such a limitation.
In the past, the CJEU has specifically held that
it might be possible for national legislatures to
restrict the scope of application of an
exception or limitation harmonized at the EU
level.
13
***
I remain at your disposal should you have any questions and/or wish to discuss further any of the
points above.
Sincerely,
Eleonora Rosati
Stockholm, 28 May 2023
Austro-Mechana,
C-433/20, EU:C:2022:217, at [20], referring to
DOCERAM,
C-395/16, EU:C:2018:172, at [20] and the case
law cited therein.
12
ACI Adam and Others,
C-435/12, EU:C:2014:254, at [27]. See also
Padawan,
C-467/08, EU:C:2010:620, at [36] and
DR and TV2
Danmark,
C-510/10, EU:C:2012:244, at [36].
13
E Rosati, Copyright in the Digital Single Market. Article-by-Article Commentary to the Provisions of Directive 2019/790
(Oxford University Press:2021), 29-34.
14
7