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Row on between publishers, researchers over data mining techniques

IPO attempts to data mine consultation responses

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Plans to enable researchers to use computerised techniques to read information contained in journal articles without infringing publishers' rights have drawn "strongly divided" views from the industry, the Intellectual Property Office (IPO) has said.

The IPO has published (40-page/450KB PDF) a summary of responses it received to a consultation it launched in December last year on government plans to reform the UK's copyright framework. The proposals included creating an exception to copyright that would allow researchers to use 'data mining' techniques without fear of falling foul of copyright law.

Content mining involves the use of technology to go through vast amounts of content in an automated way to extract information from it. Researchers are currently not permitted to use some software to read data from journal articles without specific permission from the copyright owners, regardless of whether or not the researcher has already paid to access that article.

"Researchers and research institutions generally supported the proposed exception," the IPO said. "They argued that copyright was not established to restrict the use of data, and the added value of these technologies was provided by the actions of researchers, not publishers.

"Some respondents here also felt that there was considerable unmet demand in this area, and licensing processes were not scalable for bulk use. Other respondents felt that publicly-funded researchers in particular should be allowed flexible and straight forward access to publicly-funded research. Some felt that reducing the fees and transaction costs involved in this process could bring benefits to research which outweighed the costs to publishers," it said.

"Opponents of the proposal said that it was too soon to seek a regulatory solution in a new and fast-developing sector. Some felt that judging by the number of requests received, current demand for these services was low. Several publishers felt that most requests were met and they were working together to develop more effective and scalable licensing procedures. Other respondents felt that a copyright exception would prevent publishers from ensuring security of content and stability of provision," the IPO's summary said.

"Similarly some respondents felt that an unremunerated exception would remove the incentive for publishers to make the considerable investments needed to convert content into the right forms, to develop their own services, and to support the application of services by researchers or third parties," it added.

'Cultural institutions' want 'a preservation exception'

Other reforms proposed to the copyright framework include enabling copyrighted works to be used freely in parody and pastiche.

Whilst some respondents to the consultation said that enabling copyrighted material to be used in parody or pastiche would help with educational learning and help "support new creators and foster future creativity", some respondents argued against such an exception. They claimed that the UK "parody market" was "thriving" under the existing licensing regime, and that the comedy industry should have to pay its share in royalties to "incentivise the creation of works on which it relies for that business."

The copyright consultation also contained plans to allow libraries and other archivists to copy material in soon-to-be obsolete formats in order to preserve it. However, some rights holders said that such an exception should contain "stronger safeguards or clarifications" so that it was clear which bodies could benefit, whilst others only want free "preservation copying" to be legitimate if commercial copies of the material is not available or practically possible to purchase.

In contrast respondent libraries, archives, museums and galleries said the existing "rights clearance procedure" for preservation of works was "onerous and costly" and that a preservation exception was urgently needed to prevent some content from becoming obsolete. The cultural bodies said, though, that whilst only a reasonable number of copies should be permitted to be made under the exception, no finite limit should be introduced.

The IPO also reported opposing views had been submitted on other planned reforms to copyright, including allowing education bodies to copy protected works into new formats for student learning. There was also dispute over whether copyrighted works could be used in quotation and in reporting current events without infringement, with a particular issue arising over what length of extract should be permissible under the planned exception.

Rights holders also campaigned for a planned 'private copying' exception to be limited to physical products only, and specifically prevent individuals copying digital content into cloud storage services for private use.

However, the IPO said that some "users and institutions" had expressed concern that any widening of copyright exceptions could still be overridden by contracts used by rights holders. Rights holders, though, argued that introducing any "general measure" to prevent contractual override of copyright exceptions "would constitute an unduly excessive restriction of freedom to contract," it said.

Concerns were also expressed with how plans to allow for greater use of 'orphan' works would fit in with the planned widening of copyright exceptions. Orphan works are copyrighted material, such as books, films and music, which have no identified owner.

In the government's consultation it proposed a new orphan works scheme which would establish licensing and clearance procedures for copyright material which currently cannot be used because its creator or owner is unknown and would include "necessary safeguards" for both the owners and rights holders of orphan works.

However, the government has approached the issue of copyright exceptions and its proposed orphan works scheme "in isolation" and could not therefore know "how they would work together", some consultation respondents had said.

"Many" groups that responded to the consultation welcomed plans to create a new digital copyright exchange (DCE). A feasibility study has been undertaken to see whether such a mechanism would improve copyright licensing in the UK. Some of the respondents though said that changes to copyright law should wait until the feasibility study has been completed, the IPO said.

Copyright © 2012, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.

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