Exceptions with teeth: the new Slovenian text and data mining provisions

CDSM Directive • innovation • research • Slovenia • TDM • text and data mining

Contribution by Dr Maja Bogataj Jančič, KR21’s national coordination for Slovenia and regional coordinator for Croatia, Serbia, Bosnia and Hercegovina, North Macedonia, Montenegro, Kosovo

The Slovenian implementation of the European text and data mining (TDM) exceptions allow the digitisation of analogue works for the purpose of TDM and the remote access to content and the sharing of the results for TDM purposes. Rights holders need to ensure that the beneficiaries of the exceptions can effectively perform TDM and need to act within 72 hours or face sanctions.

The Directive on Copyright in the Digital Single Market (DSM Directive) was implemented in Slovenia by the Copyright and Related Rights Act (Zakon o avtorski in sorodnih pravicah, ZASP)¹ and the Collective Management of Copyright and Related Rights Act (Zakon o kolektivnem upravljanju avtorske in sorodnih pravic, ZKUASP)² in autumn 2022.

The first public draft laws were already published by the Government in May 2021, and followed by several public consultation proceedings regarding the implementing acts, with the promise of a transparent and inclusive public debate. However, the proposals put forward by public interest advocates, including those focussing on research, were disregarded in draft versions. The legislative process was heavily criticized.³

Overall, the result is underwhelming in regards to the transposition of most of the DSM Directive exceptions and limitations, but there are positive examples, including the implementation of both EU TDM exceptions, the one for the purposes of scientific research (Art. 3 DSM Directive) and the one for all other purposes (Art. 4 DSM Directive), and a general scientific research exception.

TDM exception for the purpose of scientific research

Looking in particular at the Slovenian implementation of the TDM exception for the purpose of scientific research, there are noteworthy elements, as it extends beyond the requirements of the DSM Directive but also falls short of them, in some aspects).⁴

Most importantly, it includes the possibilities of: reproduction, which allows for the digitisation of analogue works and remote access to content for the TDM purposes, as well as the sharing of results.

One of the interesting features of the Slovenian transposition is modelled on the COMMUNIA and LIBER guidelines for the implementation of Article 3 and 4 of the DSM Directive.⁵ It provides that if rights holders use technological protection measures (TPMs)⁶ that hinder the use of the TDM exception, they must, at the request of the beneficiary of the exception, enable the application of the exception in the shortest possible time by changing the TPMs or by other means. If the rights holder does not provide such means, beneficiaries of the exception may request the intervention of a mediator.

This solution is not a new one in the Slovenian copyright law. The approach is modelled on the Slovenian implementation of the old Article 6(4) of the InfoSoc directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society).⁷ However, while this solution might have looked good on paper, it has not worked in practice.

The new law does not stop here. It additionally prescribes that the rights holders need to provide access for the purposes of TDM to legally accessible works within 72 hours or otherwise face sanctions.⁸ This provision is novel in the world of the TDM exceptions, and its use in practice by beneficiaries remains to be seen.

Who will benefit from this? The beneficiaries of the TDM exception are research organisations, publicly accessible (available) archives, libraries, museums, public film or audio heritage institutions and public radio-television organisations, as well as individuals that belong to research organisations and cultural heritage institutions.⁹

Research organisations are defined as universities and their libraries, research organisations, public research organisations and other legal entities that, according to the regulations governing scientific, research or educational activity, carry out as their main goal scientific research or educational activities, which also include scientific research.¹⁰

“Other higher education institutions and their libraries” are not expressly included amongst the beneficiaries. A research organisation where a person of private capital has a decisive influence that enables priority access to research results is excluded from the definition of research organisations that are covered by this exception.

Cultural heritage institutions are not explicitly defined, but their definition is implied in the wording of Article 57.d, titled “Preservation of cultural heritage” in relation to para. 1 of Article 57.b. In connection to cultural heritage institutions, both articles refer to publicly accessible (available) archives, libraries, museums, public film or audio heritage institutions and public radio—television organisations. Publicly available archives are not expressly defined in the ZASP. Archives that offer a public archiving service are defined by the government as the National archive of the Republic of Slovenia and regional archives.¹¹

Publicly available libraries are also not expressly defined. However, the Librarianship Act (Zakon o knjižničarstvu) defines libraries that offer a public service as general libraries, higher education libraries, special libraries and the national library, whilst school libraries are considered a part of the educational public service.¹²

Public radio-television service refers to the Radiotelevision of Slovenia.¹³ Museums are defined in the Cultural Heritage Protection Act (ZVKD-1)¹⁴ as a permanent organisation in the service of society and its development, which is open to the public and which collects, preserves, documents, studies, interprets, manages and exhibits heritage and transmits information about it with the aim of developing awareness of heritage, spreading knowledge about its values and enabling enjoyment of them. However, public film or audio heritage institutions are not expressly defined by law.

The initial drafts the government proposed in 2021 and 2022 did not include individuals who are members of institutions as beneficiaries. Luckily, this was successfully corrected in the last minute draft in August 2022.

Sharing and storing of the results

Sharing and making available to the public the results of TDM for scientific research is permissible, if the scope of the TDM activities is: (1) limited to the purpose to be achieved, (2) in accordance with good customs, (3) not in contradiction with normal use of the work and (4) not unreasonably in conflict with the legitimate interests of the author.¹⁵ The effects of the unusual repetition of the three-step test requirements in this provision still remain to be seen. Contractual override of the exception is explicitly forbidden by the law.

Freely available content on the open web is excluded, at least for now

The Slovenian implementation of the TDM exception for research has many positive aspects but it also has a very problematic part. The transposition defines legal access in line with the general definition of this concept in Slovenian copyright legislation, which doesn’t include access to works freely available on the open web. Consequently a definition of lawful access in the Slovenian implementation of open access is narrower than the definition provided in the DSM Directive or more particularly in its Recital 14 which defines that lawful access includes access to content that is freely available online. This approach will hopefully be challenged in courts and adjusted in future.

The general TDM exception

The general text and data mining exception is regulated in article 57.a. The exception enables anyone to reproduce works for the purpose of text and data mining, which includes the digitisation of analogue works and remote access to works for TDM purposes. This is not allowed in cases where the author explicitly and appropriately reserved the right to use of the work, especially with standardised machine-readable means, including metadata and terms and conditions in cases of works, publicly accessible on the web. Machine readable means are not further defined. No further details are given regarding the opt-out process.

In cases of undue blocking the rights holders must, similarly to the TDM exception for scientific research purposes, at request of the beneficiary of the TDM exception, enable the application of the exception in the shortest possible time by changing the TPMs or by other means. If the rights holder does not provide such means, beneficiaries of the exception may request the intervention of a mediator. Additionally, in a similar vein as for the research TDM exception, rights holders need to provide access for the purposes of TDM to legally accessible works in 72 hours. Sanctions are provided in cases where measures are not removed within the legal deadline, in accordance with Article 185.

The legislator included a general prohibition of contractual override of the general TDM exception.¹⁶ The reasoning for this addition is unclear, as the regulation in the article allows for the rights holders to annul the exception by reserving the right to such use of works, which can be done by contract. This shows a lack of proper understanding of the provisions by the Slovenian legislator.

Conclusion

The Slovenian TDM exception implementation is progressive and has the promise to be effective: the beneficiaries are free to reproduce works that are legally accessible for the purposes of TDM for scientific research, which includes the digitisation of analogue works and remote access to works and the results can be shared for the TDM purposes. Under certain conditions the results can be shared.

The implementation also provides a novel solution for cases where rights holders implement TPMs that hinder TDM. How this novel complex system with mediation and/or 72 hours window to remove TPMs will play out in practice is still to be seen.

It also remains to be seen whether the EU Commission will demand Slovenia to change the definition of lawful access in order to better reflect Recital 14 of the Directive to include content openly available on the web.

The repetition of the three-step test in the TDM exception in addition to the special three-step in Article 46 in the Slovenian Copyright Act, an old particularity of the Slovenian Copyright Act, on its own also puzzles copyright experts. This may be an attempt by legislators to please rights holders which try to secure the option for remuneration for commercial uses in generative AI.¹⁷

It will be interesting to follow developments in practice and to see whether the new legislation will affect contractual practices with large publishers of scientific content, including the prevailing practice of publishers which do not give copies of individual articles but only provide access to individual articles that are otherwise uploaded on publishers’ servers.

Ideally, the Slovenian approach will spill over to other countries implementing TDM. The end results of the progressive legislation will be useful if beneficiaries are proactive in using the leeway that is available to them.