Extended collective licence for text and datamining (AI)
On 1 June 2023 – about two years late - the Danish parliament passed a bill to implement the DSM Directive in full. This meant introduction of such things as new rules on text and datamining in ss. 11b and 11c of the Danish Copyright Act, equivalent to the DSM Directive arts. 3 and 4 (where s. 11c corresponds to art. 3 and s. 11b to art. 4).
There was no provision in the Danish rules, or indication in the legislative history, regarding extended collective licence in connection with text and datamining, later often referred to as the use of Artificial Intelligence (AI).
Rights holder organisations had lobbied for such licence, among other things via a letter of 15 May 2023 with a concrete proposal (wording) on a specific extended collective licence for reproductions and extractions in connection with text and datamining outside the Copyright Act ss. 11b and 11c.
This was reflected in the Ministry of Culture’s letter of 28 May 2023 to the parliament's Cultural Affairs Committee, stating that the plan right after implementation of the DSM Directive was to look at, inter alia, the proposal for an extended collective licence in the field of text and datamining. Thus, such specific extended collective licence was expected.
On 7 December 2023 the Ministry of Culture sent out for hearing a proposal for amendments to the Danish Copyright Act, with a deadline for comments on 12 January 2024.
The proposal includes no specific extended collective licence for text and datamining, but it stresses that rights holders’ consent may be necessary, it indicates that the existing general extended collective licence could be used in this connection, and it introduces a possibility for mediation. Thus the proposal sets out (my translation with the assistance of AI):
“It is further proposed that s. 50, paragraph 2, be added to the list in s. 52, so that in connection with negotiations after the general extended collective licence in s. 50, paragraph 2, there is an opportunity for mediation.
The Ministry of Culture notes that, for example, in the field of artificial intelligence and text and datamining, there are often large international players, and experience has shown that there may be a need to formalise discussions in negotiations with large tech companies, which mediation can contribute to.
The proposed change means that in connection with the general extended collective licence - e.g. with regard to collective agreements on text and datamining and artificial intelligence (AI) - mediation can be used to promote the conclusion of agreements. The parties themselves, i.e. the rights holders in specific areas of works and providers of AI services, can enter into and define agreements, and provided that the conditions are met, extended collective licence effect can be attributed to them. This means that in the agreement that can be given extended collective licence effect, it is possible to define which types of works, etc. are covered. […]
Text and datamining may be associated with the use of material protected by copyright law. This is the case, for example, when protected material is copied or content is extracted from a database, for example when data is normalised during the text and datamining process. In such cases, permission must be obtained from the rights holders for the action if one of the exceptions or restrictions in the Copyright Act does not apply.
Exceptions in s. 11b and s. 11c do not provide full access to text and datamining of protected works. The general extended collective licence can be used here to fill the gaps by allowing collective agreements with extended licence effect to the extent that use is not permitted under s. 11b or s. 11c.
It is becoming increasingly common to use automated algorithms (artificial intelligence), where a large number of works can be scraped and analysed in a short time. When training models are based on generative AI, which takes place during scraping, there is a mass exploitation of works involving a large number of rights holders. Since the core of the Nordic extended collective licence model is to ensure agreement on mass exploitation, so that users are ensured easy access to rights clearance, and rights holders are ensured reasonable payment for the use of their works, the extended collective licence is an option as a clearance tool in this area.
Like other agreements under the general extended collective licence, agreements on text and datamining under s. 50, paragraph 2, have to be approved by the Ministry of Culture."
References:
- 30 May 2023 - bill amending the Danish Copyright Act to implement the DSM Directive (in Danish)
20 December 2023
Terese Foged
(This article was published in IRIS Newsletter (European Audiovisual Observatory, under the European Council)
Extended Collective Licence (ECL)
ECL implies that according to the law, a user – who has made an agreement on a particular exploitation of a certain type of works with an organisation (a collecting society, i.e. collective management organisation) comprising a substantial number of right holders of this type of works – obtains the right to use works of the same type owned by non-members of the organisation, in the same manner and on the terms that follow from the agreement with the organisation. The organisation must be approved by the Ministry of Culture for ECL regarding the area in question.
