Sean Flynn et al.

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September 17, 2021

Consultation on a Modern Copyright Framework for Artificial Intelligence (AI) and the Internet of Things (IoT)

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” research exceptions -- that is, research exceptions that are open to all uses (e.g. reproduction and communication), to all works, and to all users.Footnote 1 Empirical research also shows that text and data mining research is promoted through exceptions that more specifically authorize text and data mining research.Footnote 2 While these studies are preliminary and we are still improving on them, they provide evidence that supports the approach of combining a general research exception with a more specific data mining exception.

A. Open Exception for “Research”

Canada currently has in its law what we call a “general” exception for research. A general exception is one which covers multiple purposes of use in a single exception.Footnote 3 Our research finds that most Commonwealth countries provide a general exception for “fair dealing” with a work for multiple purposes including for “research.” The category of “research” has been interpreted broadly by the Canadian Supreme Court to include uses for consumer research.Footnote 4 Some civil law countries also provide general exceptions that apply to research uses.Footnote 5 One notable and interesting example of a general exception that is very useful for research is Japan’s exception for any use “where such exploitation is not for enjoying or causing another person to enjoy the ideas or emotions expressed in such work.”Footnote 6

The benefit of a general exception for research is that it can accommodate unforeseen uses that are nonetheless fair to the right holder. Countries such as the United States and Canada, both of which have such exceptions, were the first to adopt text and data mining methodologies even before the practice was clearly authorized, thus gaining significant advantages in the fields of research and technology.

B. Exception for Text and Data Mining

As noted above, empirical research suggests that there may be additional benefit to providing a specific exception for text and data mining in addition to a general exception for research.Footnote 7 Other countries with general research exceptions have followed this model and provide as well a specific exception for TDM.Footnote 8

Many scholars argue that text and data mining should not be considered within copyright’s exclusive protection because copyright was never intended to require authorization for reading and analysis.Footnote 9 Nonetheless, copyright questions can be raised with respect to the technical reproductions required to create a “corpus” of works to be mined for many projects.Footnote 10

Our research indicates that the most useful text and data mining exception is:

  • Open to all TDM “uses,” including specifically to communications or distributions needed to promote research collaboration and validation;
  • Open to all users, both individuals and institutions, commercial and non-commercial;
  • Open to the use of all works, including, for example, audio visual works.

Legislators have defined the purpose of the use protected in TDM exceptions through terms such as “text and data mining”,Footnote 11 “computational” use,Footnote 12 or “data analysis”.Footnote 13

Singapore is adopting a very useful and highly specific exception for “computational data analysis.” The exception extends to reproductions and communications to the public that are necessary for the purposes of: (i) verifying the results of the computational data analysis or (ii) collaborative research and study. The exception encompasses both commercial and non- commercial uses. Article 60 specifically provides that computational data analysis under the exception does not constitute a protected publication. And as the EU Copyright in the Digital Single Market Directive, Singapore provides that computational data analysis “may not be excluded or restricted” by contract.Footnote 14

C. Open General Exception

Several countries from both the civil and common law tradition provide open general exceptions that can apply to a use for any purpose as long as the use is fair to the rights of the author.Footnote 15 The U.S. fair use right is one example.Footnote 16

Interestingly, empirical research has shown that transitioning from a fair dealing right with a closed list of purposes to a fair use right with an open list of purposes can benefit research, even where the prior fair dealing right explicitly protected research uses, as does Canada.Footnote 17 This may indicate that fair use gives researchers a positive signal that can be beneficial to their work, even where the fair dealing exception already covers research purposes. Thus, one additional change to the Canada’s Act that could benefit TDM research could be to transition from fair dealing to an open fair use right.

We would be happy to discuss our research in more detail. Again, we are grateful for the opportunity to participate in this consultation.

Respectfully,

Sean Flynn, Director, Program on Information Justice and Intellectual Property, American University Washington College of Law

Lucie Guibault, Professor of Law, Dalhousie University

Christian Handke, Associate Professor, Erasmus University Rotterdam, Netherlands

Joan-Josep Vallbé, Serra Húnter Associate Professor of Political Science, University of Barcelona

Mike Palmedo, Post-Doctoral Research Fellow, Program on Information Justice and Intellectual Property, American University Washington College of Law

Carys Craig, Associate Professor, Osgoode Hall Law School of York University Michael Geist, Professor of Law, University of Ottawa

João Quintais, Assistant Professor, Faculty of Law, University of Amsterdam