TDM copyright for AI in Europe: a view from Portugal

Abstract

Abstract The development of artificial intelligence (AI) justified the introduction at the level of the European Union (EU) of a new copyright exception regarding text and data mining (TDM) for purposes of scientific research conducted by research organizations and entities responsible for cultural heritage. This exception is binding and mandatory, as Member States have to provide it in their domestic laws and it cannot be excluded by contract nor by technical measures. In addition to this exception for scientific purposes, a general TDM exception is provided, which is also binding but only applies by default, meaning that it can be excluded by contract and/or by technical measures. The default TDM exception also applies to computer programs, raising the question whether acts allowed under the Software Directive can now be excluded by contract and/or technical measures. It is far from clear whether the new regime extends or, on the contrary, restricts freedom of innovation in AI and whether and how the TDM copyright will contribute to the development of AI and encourage ‘machine learning’ in Europe. The Portuguese implementation of the new ‘TDM copyright’ has been faithful to EU law, and therefore, AI development in Portugal will be carried out under the copyright terms of the Digital Single Market Directive, which seeks a fair balance between the principle of high-level protection of rightholders, the rights and freedoms of users and the good functioning of the digital market in the EU.