You’ve probably heard that the EU parliament recently rejected the EU Copyright Directive (Directive on Copyright in the Digital Single Market 2016/0280(COD)) – which is intended to harmonize aspects of the European Union copyright law and corroborate the Digital Single Market – or more accurately, sent it for proper debate.

Why is this a good thing? Isn’t anything that can normalise copyright laws across a bunch of different countries welcome? Well yes, but there are a few aspects of this directive that are problematic.

The better understood ones are Articles 11 and 13. Article 11 is ostensibly about giving the online news outlets better recompense for their online content. The proposal wants news aggregators like Google and Facebook to licence news articles that they link to from news providers, so Article 11 has become known as the “link tax”. At face value, making large international conglomerates pay for content seems unremarkable, but the Directive would apply to all news aggregators, however large or small, and if the aggregators refused to use content from certain (European) outlets because they had to pay for it, then those outlets would not only not earn revenue from licencing, but as linking has also been found to benefit news outlets through increased exposure (and ad revenue) by the aggregators driving traffic to their sites, they would lose that revenue too. So potential unintended consequences make this a bad idea.

Article 13 is more straightforward. It requires content sharing services to screen user uploaded content for infringing material. The concern is that the machines that do this aren’t very bright, and most certainly don’t have a sense of humour, so would be incapable of assessing parody or memes. As copyright exceptions exist for fair dealing/criticism and review, which covers parody and memes, would the rise of the machines kill off the creativity displayed on the internet?

However, Article 3 is one I think could potentially have the greatest ramifications for medcomms – the text and data mining (TDM) exception. TDM is the act of machine retrieval of content within documents such as scientific papers or datasets against prespecified search criteria. Sounds a lot like automated gap analysis doesn’t it? I hadn’t really been thinking much about TDM until recently, while working on the development of our automated literature analysis tool.

Article 3 proposes a non-overridable copyright exception for TDM (good) but only for research organizations (bad) and only for the purposes of scientific research – great for academia, but not for businesses, and what’s the definition of “scientific research”? TDM currently requires additional publisher licences to use materials to which the user has “lawful access”, but should TDM be a copyright issue at all? The process is about extracting and processing information from works, rather than reproducing works per se. Why should the use of an algorithm rather than a human to extract the required content from an article to which the user has lawful access (i.e. a copyright-fee paid copy) attract an additional licence fee? The answer to that is that TDM software usually requires a transformative copy so it can mine the text – a temporary copy that is deleted once the process or project has completed. The creation of these temporary copies is what requires the TDM licence and Article 3 is what exempts research organizations carrying out TDM for scientific research, but nobody else, from that licence requirement.

So Article 3 won’t make anything worse for medcomms – we would still need TDM licences for automated literature analyses – but if the EU considers its impact assessment (if you read the [quite long] explanatory memo that precedes the [quite short] general provisions) and reconsiders the beneficiary limitation, it could open the door for licence-free TDM, making lots of medical writers who currently plough through hundreds of articles to fill in spreadsheets, very happy.

If you really want to get in to Article 3, I recommend this as a jolly good read.


Jackie Marchington is the Director of Global Operations for Caudex.

Jackie has been in medical communications for 28 years, as this has been her first “proper job” after leaving academia. She started out as a hybrid medical writer/editor, and worked her way through the organization to her current role, picking up a variety of skills along the way. She has worked on the full range of medical communications services, but over the last 10 years or so has come to specialize in publications and publication planning.

She has become an advocate for medical publication professionals, having published more than15 articles in the peer-reviewed literature clarifying the role of publication professionals in the development of medical publications.

Jackie completed her PhD in metabolic obesity at the University of Southampton Medical School in 1987, having gained her BSc in biochemistry with physiology from the same institution.

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