TDM can be approached using different regulatory options, such as an explicit right in the national or European law, an optional exception, a mandatory exception or fair use of the copyrighted material (which is the case in the US). The current status in the EU is that TDM is one of the exceptions provided for in the InfoSoc Directive. This led to Member States implementing it in a very fragmented way, or in some cases choosing not to implement it at all, creating significant legal uncertainty for researchers and other stakeholders. In this paper, OFE presents the vast majority of the various arguments and approaches relating to TDM in Europe, as well as providing recommendations addressing various identified challenges.
This paper is based on extensive desk research, including most of the benchmark reports, such as the European Commission funded Expert Group Report (2014), the study by De Wolf and Partners (2014), the UK IPO’s “Exceptions to Copyright” brief (October 2014), as well as numerous other reports, position papers, articles and blog posts. The initial findings have been discussed at the Round Table that OFE organised in October 2015, the conclusions of which are available in the follow-up White Paper. The desk research and Round Table discussion have been complemented by a series of interviews with academics, researchers, start-ups, and more established companies (including publishers and infrastructure providers).