Last month, we blogged about the key takeaways from the 2024 TDM exemptions recently put in place by the Librarian of Congress, including how the 2024 exemptions (1) expand researchers’ access to existing corpora, (2) definitively allow the viewing and annotation of copyrighted materials for TDM research purposes, and (3) create new obligations for researchers to disclose security protocols to trade associations. Beyond these key changes, the TDM exemptions remain largely the same: researchers affiliated with universities are allowed to circumvent TPMs to compile corpora for TDM research, provided that those copies of copyrighted materials are legally obtained and adequate security protocols are put in place.
We have since updated our resources page on Text and Data Mining and have incorporated the new developments into our TDM report: Text and Data Mining Under U.S. Copyright Law: Landscape, Flaws & Recommendations.
In this blog post, we share some further reflections on the newly expanded TDM exemptions—including (1) the use of AI tools in TDM research, (2) outside researchers’ access to existing corpora, (3) the disclosure requirement, and (4) a potential TDM licensing market—as well as other insights that emerged during the 9th triennial rulemaking.
The TDM Exemption
In other jurisdictions, such as the EU, Singapore, and Japan, legal provisions that permit “text data mining” also allow a broad array of uses, such as general machine learning and generative AI model training. In the US, exemptions allowing TDM so far have not explicitly addressed whether AI could be used as a tool for conducting TDM research. In this round of remaking, we were able to gain clarity on how AI tools are allowed to aid TDM research. Advocates for the TDM exemptions provided ample examples of how machine learning and AI are key to conducting TDM research and asked that “generative AI” not be deemed categorically impermissible as a tool for TDM research. The Copyright Office agreed that a wide array of tools could be utilized for TDM research under the exemptions, including AI tools, as long as the purpose is to conduct “scholarly text and data mining research and teaching.” The Office was careful to limit its analysis to those uses and not address other applications such as compiling data—or reusing existing TDM corpora—for training generative AI models; those are an entirely separate issue from facilitating non-commercial TDM research.
Besides clarifying that AI tools are allowed for TDM research and that viewing and annotation are permitted for copyrighted materials, the new exemptions offer meaningful improvement to TDM researchers’ access to corpora. The previous 2021 exemptions allowed access for purposes of “collaboration,” but many researchers interpreted that narrowly, and the Office confirmed that “collaboration” was not meant to encompass outside research projects entirely unrelated to the original research for which the corpus was created. Under the 2021 exemptions, a TDM corpus could only be accessed by outside researchers if they are working on the same research project as the original compiler of the corpus. The 2024 exemptions’ expansion of access to existing corpora has two main components and advantages.
The expansion now allows for new research projects to be conducted on existing corpora, permitting institutions that have created a corpus to provide access “to researchers affiliated with other nonprofit institutions of higher education, with all access provided only through secure connections and on the condition of authenticated credentials, solely for purposes of text and data mining research or teaching.” At the same time, it also opens up new possibilities for researchers at institutions who otherwise would not have access, as the new exemption does not require a precondition that the outside researchers’ institutions otherwise own copies of works in the corpora. The new exemptions pose some important limitations: only researchers at institutions of higher education are allowed this access, and nothing more than “access” is allowed—it does not, for example, allow the transfer of a corpus for local use.
The Office emphasized the need for adequate security protections, pointing back to cases such as Authors Guild v. Google and Authors Guild v. HathiTrust, which emphasized how careful both organizations were, respectively, to prevent their digitized corpora from being misused. To take advantage of this newly expanded TDM exemption, it will be crucial for universities to provide adequate IT support to ensure that technical barriers do not impede TDM researchers. That said, the record for the exemption shows that existing users are exceedingly conscientious when it comes to security. There have been zero reported instances of security breaches or lapses related to TDM corpora being compiled and used under the exemptions.
As we previously explained, the security requirements are changed in a few ways. The new rule clarifies that trade associations can send inquiries on behalf of rightsholders. However, inquiries must be supported by a “reasonable belief” that the sender’s works are in a corpus being used for TDM research. It remains to be seen how the new obligation to disclose security measures to trade associations would impact TDM researchers and their institutions. The Register circuitously called out demands by trade associations sent to digital humanities researchers in the middle of the exemption process with a two-week response deadline as unreasonable and quoted NTIA (which provides input on the exemptions) in agreement that “[t]he timing, targeting, and tenor of these requests [for institutions to disclose their security protocols] are disturbing.” We are hopeful that this discouragement from the Copyright Office will prevent any future large-scale harassment towards TDM researchers and their institutions, but we will also remain vigilant in case trade associations were to abuse this new power.
Alongside the concerns over disclosure requirements, we have some questions about the Copyright Office’s treatment of fair use as a rationale for circumventing TPMs for TDM research. The Register restated her 2021 conclusion that “under Authors Guild, Inc. v. HathiTrust, lost licensing revenue should only be considered ‘when the use serves as a substitute for the original.’” The Office, in its recommendations, placed considerable weight on the lack of a viable licensing market for TDM, which raises a concern that, in the Office’s view, a use that once was fair and legal might lose that status when the rightsholder starts to offer an adequate licensing option. While this may never become a real issue for the existing TDM exemptions (because no sufficient licensing options exist for TDM researchers, and for the breadth and depth of content needed, it seems unlikely to ever develop), it nonetheless contributes to the growing confusion surrounding the stability of a fair use defense in the face of new licensing markets.
These concerns highlight the need for ongoing advocacy in the realm of TDM research. Overall, the Register of Copyright recognizes TDM as “a relatively new field that is quickly evolving.” This means that we could ask the Library of Congress to relax the limitations placed on TDM if we can point to legitimate research-related purposes. But, due to the nature of this process, it also means TDM researchers do not have a permanent and stable right to circumvent TPMs. As the exemptions remain subject to review every three years, many large trade associations advocate for the TDM exemptions to be greatly limited or even canceled, wishing to stifle independent TDM research. We will continue to advocate for TDM researchers, as we did during the 8th and 9th triennial rulemaking.
Looking beyond the TDM exemption, we noted a few other developments:
Warhol has not fundamentally changed fair use
First, the Opponents of the renewal of the existing exemptions repeatedly pointed to Warhol Foundation v. Goldsmith—the Supreme Court’s most recent fair use opinion—to argue that it has changed the fair use analysis such that the existing exemptions should not be renewed. For example, the Opponents argued that the fair use analysis for repairing medical devices changed under Warhol because, according to them, commercial nontransformative uses were less likely to be fair. The Copyright Office did not agree. The Register said that the same fair use analysis as in 2021 applied and that the Opponents failed “to show that the Warhol decision constitutes intervening legal precedent rendering the Office’s prior fair use analysis invalid.” In another instance where the Opponents tried to argue that commerciality must be given more weight under Warhol, the Register pointed out that under Warhol commerciality is not dispositive and must be weighed against the purpose of the new use. The arguments for revisiting the 2021 fair use analyses were uniformly rejected, which we think is good news for those of us who believe Warhol should be read as making a modest adjustment to fair use and not a wholesale reworking of the fair use doctrine.
Does ownership and control of copies matter for access?
One of the requests before the Office was an expansion of an exemption that allows for access to preservation copies of computer programs and video games. The Office rejected the main thrust of the request but, in doing so, also provided an interesting clarification that may reveal some of the Office’s thinking about the relationship between fair use and access to copies owned by the user:
“The Register concludes that proponents did not show that removing the single user limitation for preserved computer programs or permitting off-premises access to video games are likely to be noninfringing. She also notes the greater risk of market harm with removing the video game exemption’s premises limitation, given the market for legacy video games. She recommends clarifying the single copy restriction language to reflect that preservation institutions can allow a copy of a computer program to be accessed by as many individuals as there are circumvented copies legally owned.”
That sounds a lot like an endorsement of the idea that the owned-to-loaned ratio, a key concept in the controlled digital lending analysis, should matter in the fair use analysis (which is something the Hachette v. Internet Archive controlled digital lending court gave zero weight to). For future 1201 exemptions, we will have to wait and see whether the Office will use this framework in other contexts.
Addressing other non-copyright and AI questions in the 1201 process
The Librarian of Congress’s final rule included a number of notes on issues not addressed by the rulemaking:
“The Librarian is aware that the Register and her legal staff have invested a great deal of time over the past two years in analyzing the many issues underlying the 1201 process and proposed exemptions.
Through this work, the Register has come to believe that the issue of research on artificial intelligence security and trustworthiness warrants more general Congressional and regulatory attention. The Librarian agrees with the Register in this assessment. As a regulatory process focused on technological protection measures for copyrighted content, section 1201 is ill-suited to address fundamental policy issues with new technologies.”
Proponents tried to argue that the software platforms’ restrictions and barriers to conducting AI research, such as their account requirements, rate limits, and algorithmic safeguards, are circumventable TPMs under 1201, but the Register disagreed. The Register maintained that the challenges Proponents described arose not out of circumventable TPMs but out of third-party controlled Software as a Service platforms. This decision can be illuminating for TDM researchers seeking to conduct TDM research on online streaming media or social media posts.
The Librarian’s note went on to say: “The Librarian is further aware of the policy and legal issues involving a generalized ‘‘right to repair’’ equipment with embedded software. These issues have now occupied the White House, Congress, state legislatures, federal agencies, the Copyright Office, and the general public through multiple rounds of 1201 rulemaking.
Copyright is but one piece in a national framework for ensuring the security, trustworthiness, and reliability of embedded software, as well as other copyright-protected technology that affects our daily lives. Issues such as these extend beyond the reach of 1201 and may require a broader solution, as noted by the NTIA.”
These notes give an interesting, though a bit confusing, insight into how the Librarian of Congress and the Copyright Office think about the role of 1201 rulemaking when they address issues that go beyond copyright’s core concerns. While we can agree that 1201 is ill-suited to address fundamental policy issues with new technology, it is also somewhat concerning that the Office and the Librarian view copyright more generally as part of a broader “national framework for ensuring the security, trustworthiness, and reliability of embedded software.” While of course, copyright is sometimes used to further ends outside of its intended purpose, these issues are far from the core constitutional purpose of copyright law and we think they are best addressed through other means.