I november 2023 sendte Kultur- og likestillingsdepartementet et forslag til endringer i åndsverkloven på høring. Forslaget gjelder gjennomføring av digitalmarkedsdirektivet og nett- og videresendingsdirektivet i norsk rett. Høringsfristen har vært 15. mars 2024.
Denne posten oppsummerer høringsinnspill fra Liliia Oprysk (Universitetet i Bergen) og Rossana Ducato (University of Aberdeen). Innspillet gjelder implementering av unntakene for tekst- og datautvinning (digitalmarkedsdirektivet artikkel 3 og 4). Høringsnotatet foreslår tre nye paragrafer til åndsverksloven som ligger forsåvidt nært til Direktivets tekst og implementering i andre nordiske land. Innspillet tar imidlertid opp noen forslag på justeringer basert på handlingsrommet under Direktivet og erfaringer fra medlemmer av EU utenfor Norden.
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| Davide Bonazzi, CC BY 3.0 |
In November 2023, the Norwegian government published a proposal on the implementation of the DSM Directive 2019/790 into the Norwegian law and opened the text for public consultation. The proposal received input from 80 parties, among them industry, organisations representing the right holders, public institutions, and universities.
In our joint submission, we commented in particular on the proposed changes in part implementing the text and data mining (TDM) exceptions under Articles 3 and 4, and related measures under Article 7 of the Directive (EU) 2019/790 (CDSMD).
At first sight, the proposal closely follows the text of the Directive and how the relevant provisions have been implemented in other Nordic countries (Denmark, Sweden and Finland). However, there are a few important differences or aspects that could be clarified in line with the rationale of the Directive. In our submission, that benefits from the comparative analysis of the 26 (so far) implementations in EU Member States, we formulated a few recommendations to strengthen the Norwegian transposition.
In this blogpost, we summarise the key takeaways of our submission (the full version is available on SSRN).
1. The definition of TDM
The proposed text echoes the notion of TDM used in the Directive, i.e. “any automated method used to analyse data and text in a digital form to obtain information”. However, the consultation paper (point 3.6.3) recognise that the exception should also cover any preparatory process, including the digitalisation of ‘analogue materials’ or any further adaptation to enable the automated analysis. Therefore, we propose to explicitly refer to digital or digitalised text and data in the definition of TDM, similarly to the German implementation.
2. Who benefits from the research exception?
The Norwegian proposal implements the TDM exception for scientific research in Section 50 e. The text specifies that the exception is granted to research organization and cultural heritage institutions (CHI), but it does not provide further details.
We believe that the Directive and the European copyright frameworks allow to reasonably expand the list of beneficiaries.
For instance, in line with the Directive (recital 11), public-private partnerships can fall within the exception. TDM can require highly specialised efforts and means. Hence, to fully enjoy the exception, a research organisation or a CHI might sometimes need to outsource the process.
Moreover, according to recital 14 of the Directive, persons attached to the research organisations and CHIs are also covered by the exception. These persons shall include, for instance, staff, users, and students.
Therefore, we recommended clarifying the notion of research organisations and CHI, specifying that people attached to them, as well as to public-private partnerships, should also benefit from the TDM exception.
We also suggest extending the subjective scope of the exception to independent researchers who adhere to the relevant standards of their discipline and pursue a non-commercial aim, similar to some member states’ implementations (such as Austria, Germany and Ireland), based on Art. 5(3)(a) InfoSoc Directive.
3. To share or not to share?
The current formulation seems to exclude the possibility of sharing the ‘corpus’ created through TDM for research purposes. However, the Directive’s text is wider in scope, admitting the possibility of pursuing other research activities logically linked to the TDM process, such as verifying the result. This latter clarification implies a (limited) possibility to communicate the ‘corpus’ to other subjects.
To this end, the national implementation should consider aligning the current text with Art. 3(2) CDSMD, clarifying that the works used for TDM could be further shared for scientific research, including the verification of the results and joint projects, similarly to points introduced in Germany and Finland.
4. Should I stay, or should I go?
Section § 50 e transposes the exception or limitation for TDM (Art. 4 CDSMD). As known, this exception is available to anyone for any research purposes, as long as the rightholder has not expressly reserved their right ‘in an appropriate manner’. When the content is available online, the reservation can be done via machine-readable means.
The Norwegian proposal suggests that right holders can opt-out from TDM in an appropriate manner, without any further specifications. EU Member States implemented the opt-out provisions differently. While some adopted a broad and technologically neutral terminology like Norway, many have established that a valid reservation in the online environment can occur only via machine-readable means, among them Germany, Czech Republic, and Croatia. This seems to be a sensible proposal, considering how TDM works (it will be extremely time consuming not to adopt machine-readable tools for an activity that presupposes the collection and analysis of a variety of sources and large volumes of data).
We expect that harmonized standards will emerge in this area to facilitate the expression of the opt-out (some protocols are already under development - https://www.w3.org/community/tdmrep). However, it might require time and we are afraid that leaving the choice of the appropriate means to the discretion of the rightsholder can create legal uncertainties and, as a consequence, undermine users’ rights. Therefore, we recommend specifying that a valid opt-out to TDM can be expressed only through machine-readable means when the work is available online.
5. How a word can make a difference
One of the preconditions to exercise both TDM exceptions is that the user has lawful access to the sources. However, such a concept is worded slightly differently in § 50 e and § 50 f. In line with the Directive, Section 50 e refers to “lawfully accessible works” and Section 50 f to “lawful access”.
The directive further specifies with regard to TDM for research purposes that “Lawful access should also cover access to content that is freely available online” (recital 14); while recital 18 mentions that the general exception or limitation for TDM is available only when the work is accessed “lawfully by the beneficiary, including when it has been made available to the public online”.
In our opinion, Margoni has convincingly argued that this difference can allow us to: first, disentangle the concept of lawful access from the concept of lawful sources; second, that the concept of “freely available online” (in the TDM exception for research) refers to all content that can be accessed online – without going beyond a paywall or other restriction – hence, potentially even unlawful sources. This conclusion does not seem to conflict with the balance of interests of the CDSMD, considering the favourable treatment reserved to research purposes.
We support this interpretation. Therefore, we welcome the linguistic nuances adopted by the Norwegian text in Section 50e and 50f. However, we believe that the notion of ‘lawful access’ and its relation to the use of lawful sources could be further clarified, building on recitals 14 and 18 CDSMD and Margoni’s interpretation. The national implementation could, therefore, consider the proposal to clarify that the beneficiaries under § 50 f are shielded from liability when they act in good faith and according to the appropriate research standard in their filed within the limits of the provision on works that are freely available online.
6. Private ordering strikes back
Section 100 of the Norwegian Copyright Act regulates Technological Protection Measures (TPMs) and their relationship with the exceptions. If a TPM unduly restrict a user’s right, Section 100 obliges rightholders to provide “necessary information or assistance to enable the use of a work”.
The amendment to Section 100 correctly extends the countermeasure mechanism to the TDM exception for research. However, it leaves out the general TDM exception. Such exclusion can be motivated considering that this latter exception can be reserved by the rightholder.
Even if a TPM and the opt-out can have the same practical consequence in some cases, we argued that they should be maintained conceptually separated. The TPM environment is dynamic, not fully mapped, and we are concerned that not all technical measures might have the granularity to effectively represent the will of the rightholder. Hence, in line with the text of the Directive we suggested that protection against TPMs preventing making use of an exception or limitation under § 100 shall be secured for both TDM exceptions. Indeed, the majority of Member States have recognised the safeguards mechanisms for both TDM exceptions, among them also Sweden.
7. A new hope for Section 100’s board?
The Norwegian proposal intends to rename Remuneration board (Vederlagsnemnda) tasked with considering disputes as to remuneration for the use of works under compulsory and extended collective licenses to Copyright board (Opphavsrettsnemnda) and expand its competencies also to include the disputes related to § 69 and § 70 (fair remuneration and contract adjustment), which are of direct relevance to provisions of CDSMD.
As mentioned earlier on, the beneficiary of the exception can refer a complaint to the board (nemnd) under § 100. However, such a board was never established. The current process of transposition could be the perfect occasion to remedy this gap. Considering the proposed reform of the Remuneration board (Vederlagsnemnda), we suggested it could be reasonable to extend its competences to disputes arising under § 100.
All in all, we believe that the Norwegian proposal does not depart substantially from the rationale of the CDSMD. We noticed a key difference in the implementation of Art. 7 CDSMD, in relation to the protection of the exceptions from TPMs. Other sections – definitions, beneficiaries, lawful access, and opt-out mechanisms – could be further clarified to address potential interpretative doubts. Finally, the reform could be an important occasion not to be missed to remedy a potential vulnus for lawful users. Norway formally introduced a process to ensure that TPMs comply with the exceptions, but the body in charge of examining the disputes was never established. The time is mature to make the remedy effective.
Liliia Oprysk og Rossana Ducato
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