A European solution for Text and Data Mining in the development of creative Artificial Intelligence : With a specific focus on articles 3 and 4 of the Digital Signel Market Directive

Sammanfattning: In today’s data-driven society, also called the Fourth Industrial Revolution, Text and Data Mining (TDM) has become an essential tool in managing the booming Big Data in its different sizes and forms. It is also an inherent part of AI research using machine learning, where these techniques highly depend on datasets derived from TDM to self-learn and to make autonomous decisions. Through the lens of copyright and related rights, TDM may be used to train AI for the purpose of AI-driven creativity, where AI has already helped in actualizing paintings, compose music and to produce movie trailers. However, since TDM typically involves extraction and/or copying of works and other subject matter protectable by copyright and related rights – in order to create datasets relevant to each AI project – it is at risk of infringing the exclusive right of reproduction and sui generis database right under the EU acquis. Indeed, TDM used for the purpose of AI-driven creativity may not necessarily amount to an infringement, if the restricted act is covered by prima facie an available exception or limitation. Several pre-existing exceptions and limitations under the EU acquis, i.e. temporary act of reproduction, scientific research, normal use of a database, extraction of insubstantial part from a database and the mandatory exception for computer programs, have been examined as possible candidates to screen unlicensed TDM activities from copyright and related rights infringement. However, this thesis observes that due to their narrow scope and the legal fragmentation caused by the voluntary implementation of some of the exceptions, these are not fully adapted to cover unlicensed TDM and thus creating legal uncertainties for AI developers. In this regard, in order to transfers the fundamental principle of copyright and related rights into the digital age and to compete with legal systems that offer a more friendly environment for TDM (e.g. US, Japan and UK), the European legislator adopted the Digital Single Market Directive 2019/790 (DSM Directive) comprising two obligatory TDM exceptions in articles 3 and 4. However, despite the reduction of several legal uncertainties and the diverging national implementations of the pre-existing exceptions and limitations, the adopted regime has significant shortcoming that may hinder the AI development in Europe. Ultimately, this thesis concludes that despite following an approach that better fits the digital environment, the DSM Directive fails to address the new era of the Fourth Industrial Revolution to which AI belongs.