US data mining safe harbor brings US policy in line with allies

A. OTHER TEXT AND DATA MINING (TDM) EXCEPTIONS As the benefits of AI technologies have become apparent, countries have amended their copyright laws to promote innovation and remain competitive in the AI/ML space.175 The United States already has comparably strong protections for data miners through the fair use doctrine.176 However, a general safe harbor for data mining would further the spirit of these protections by clarifying the interaction of copyright and AI for smaller innovators.177 Other jurisdictions have recently enacted text and data mining (TDM) exceptions that can provide guidance here. Japan was the first country in the world to update its copyright laws to include an exception for text and data mining.178 Article 47(7) was introduced in 2009 and authorized TDM by all users for all purposes, whether commercial or non-commercial.179 In line with Prime Minister Shinzo Abe’s objective of promoting AI and Big Data industries, the 2018 Amendment to the Copyright Act later introduced three provisions to clarify the law and remove perceived copyright barriers to AI: (1) Article 30-4 authorizes users to “analyse and understand copyrighted works for machine learning;” (2) Article 47-4 “permits electronic incidental copies of works;” and (3) Article 47-5 “allows the use of copyrighted works for data verification.”180 Japan’s three new copyright provisions that specifically reference acts relevant to the machine learning process demonstrate a national commitment to the flourishing of AI industries. Similarly, the United Kingdom has also enacted an exception for TDM purposes in its copyright laws.181 However, its exception is markedly narrower than Japan’s. Under § 29A of the Copyright, Designs and Patents Act 1988, copies made for TDM analysis do not infringe copyright, provided that the work is carried out “for the sole purpose of research for a non-commercial purpose.”182 The beneficiaries of the exception are also limited to those who have “lawful access” to the work in question.183 While providing legal certainty for researchers, the U.K. exception leaves out startups and entrepreneurs who aim to commercialize innovative machine learning technologies. Recognizing the legal uncertainty experienced by researchers who utilize TDM and a need for a harmonized exception among its member states, the European Union recently introduced two exceptions for TDM in Directive 2019/790/EU.184 Article 3 permits “reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text and data mining of works or other subject matter to which they have lawful access.”185 Article 4 confers an exception for “reproductions and extractions of lawfully accessible works and other subject matter” for commercial TDM uses but allows rightsholders to opt-out of the exemption.186 This limitation imposed on commercial TDM uses in Article 4 has been criticized for “effectively creat[ing] and legitimiz[ing] a derivative market for text and data mining, which right holders may wish to control, license[,] or even entirely prohibit.”187 While the TDM exceptions in the Directive recognize the importance of data mining in research and technology, the clear limitations in Article 4 may put commercial AI developers in the European Union at a disadvantage. Not to be left behind, other countries are also considering changes to their copyright law to provide legal certainty and encourage innovation and research in data mining.188 Australia is considering several TDM-related exceptions as part of an overall fair use exception.189 Canadian scholars have advocated for a fair use regime or a specific TDM exception for commercial uses.190 And Singapore is expected to move forward with proposed TDM exceptions enabling broad uses for both commercial and non-commercial contexts.191 As countries amend and clarify their laws to allow technological flourishing, the United States should also consider revisiting its copyright laws.