L’accesso tramite data analysis a dati e informazioni protetti dal diritto d’autore, tra diritti esclusivi ed eccezioni di text and data mining

This study is focused on the new data access rules defined by the European Union directive n. 790 of 2019, on Copyright and related rights in the Digital Single Market, and their implementation in the Italian system. Among the provisions introduced by the European legislator in terms of access to data, articles 3 and 4 provide for two different exceptions in the case of Text and Data Mining (TDM or, in general, data analysis) techniques. TDM consists in the extraction, through software, of text and data, to interpret and extrapolate information whose output generates a knowledge discovery. These techniques stand as a fundamental moment of technological and cultural innovation in the data-driven society, and they have prompted the European legislator to intervene with specific regulations. The recent Copyright Directive is just a piece of a European framework where data is becoming the center of attention, with legislations overlapping in different fields of law, such as the most recent Digital Markets Act and Digital Services Act, that are just the last examples of an already full EU digital agenda. The survey will adopt as a point of view the observation of the exceptions as a tool for opening up data in enhancing access to information and in its relationship with exclusive rights, especially those copyright-related, which the new discipline aims to "open". The EU has thus set up an ambivalent liberalization mechanism, depending on the purpose pursued in conducting data analysis. A system of clear favor has been created for research organizations and cultural heritage institutions that use data analysis for scientific research purposes, while for any other subject and/or for any other purpose the opening of exclusive rights has been subject to an opt-out clause, also assuming for both cases that the person benefiting from the use has legitimate access to the material. It has been argued that the Directive, instead of encouraging research and access to information, strengthens the position of rightsholders, who would be forced to allow access to their works only to a limited circle of beneficiaries. This leads to the interpreter’s task to make sense of the provisions referred to in art. 4 of the Directive and art. 70-quater l. aut., to justify the introduction of a legislation that would risk to negatively affect access to data. To do this, different solutions may arise: through broader interpretations of the exceptions, or by legitimation of data analysis based on Copyright principles, or, finally, through antitrust regulation.