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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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I have previously written, having had conversations with Erik Ketzan (although any misunderstandings in the final things I’m writing here are mine, not his), about a problem with the synthesis between the UK copyright exemption for research and EU Directive 2001/29/EC. The problem is that while UK law allows for exemptions on the grounds of research, EU law does not allow for the breaking of DRM that might facilitate this.

I returned to this today and wondered the following:

Paragraph 4 of the directive reads:

Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightsholders, including agreements between rightsholders and other parties concerned, Member States shall take appropriate measures to ensure that rightsholders make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation and where that beneficiary has legal access to the protected work or subject-matter concerned. (…)

So, if the rightsholders do not make available a copy that is unencumbered for the purposes of exception or limitation in national law – such as the UK exemption for research – then there must be “appropriate measures” taken by the Member State to allow the beneficiaries of an exemption to gain that benefit. This gives me confidence that any lawsuit brought against a party breaking DRM for research/text mining, and whose request for an unencumbered version was ignored or denied, would not succeed.

Paragraph 3 reads:

the expression ‘technological measures’ means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightsholder.

The UK exemption reads:

If a researcher has the right to read a copyright document under the terms of the licensing agreement with the content provider, they must be permitted to copy the work for the purpose of non-commercial text and data mining.

In other words, the act must, under UK law, be “authorised by the rightsholder” as a condition of copyright. It seems questionable to me, then, whether, in the context of breaking DRM for research purposes, such DRM can be defined as a “technological measure” under the scope of the European Directive.

Of course, none of the above constitutes legal advice. I am not a lawyer. I am just trying to think this all through. I have no objection, either, to purchasing versions of texts that are unencumbered by DRM for the purposes of our research. However, these are not readily accessible in many instances.