Crafting a Text and Data Mining Exception for Machine Learning and Big Data in the Digital Single Market

New data are created by the quintillions of bytes every day. This explosion of data makes possible fast-developing machine learning and artificial intelligence technology. These technologies thrive on repurposing and processing big data streams. In the big data era, orienting within this magma of online data has become an extremely complex but crucial task, leading to complex issues in terms of regulation of this new environment. According to the European Commission, the European data economy—also frequently referred to as the “fourth industrial revolution”—is a great opportunity for growth as “Big Data considerably improves decision-making capabilities and, ultimately organizational performances.” Text and data mining (TDM) thus serves as an essential tool to navigate the endless sea of online information in search of this invaluable treasure that big data might hold for the European economy. Some studies have estimated that it could create value in excess of hundreds of billions of euros for Europe if data can be used more effectively. The European Union (EU) would like to promote measures to unlock TDM potentialities. The Proposal for a Directive on Copyright in the Digital Single Market (DSM Draft Directive) aims to improve access to protected works across borders within the digital single market (DSM) to boost research and innovation. In particular, the proposal would like to introduce a new mandatory limitation for TDM. In this chapter we assess this proposal against the international and European copyright framework and evaluate room for possible improvement. We conclude by inviting EU policymakers to significantly broaden the scope of the limitation in order not to prevent European DSM players from engaging safely in ground-breaking technological innovation, such as machine learning, neural networks, and artificial intelligence, through the exploitation of big data’s riches