"Fair Use Rights to Conduct Text and Data Mining and Use Artificial Intelligence Tools Are Essential for UC Research and Teaching"

The UC Libraries invest more than $60 million each year licensing systemwide electronic content needed by scholars for these and other studies. (Indeed, the $60 million figure represents license agreements made at the UC systemwide and multi-campus levels. But each individual campus also licenses electronic resources, adding millions more in total expenditures.) Our libraries secure campus access to a broad range of digital resources including books, scientific journals, databases, multimedia resources, and other materials. In doing so, the UC Libraries must negotiate licensing terms that ensure scholars can make both lawful and comprehensive use of the materials the libraries have procured. Increasingly, however, publishers and vendors are presenting libraries with content license agreements that attempt to preclude, or charge additional and unsupportable fees for, fair uses like training AI tools in the course of conducting TDM. . . .

If the UC Libraries are unable to protect these fair uses, UC scholars will be at the mercy of publishers aggregating and controlling what may be done with the scholarly record. Further, UC scholars’ pursuit of knowledge will be disproportionately stymied relative to academic colleagues in other global regions, given that a large proportion of other countries preclude contractual override of research exceptions.

Indeed, in more than forty countries—including all those within the European Union (EU)—publishers are prohibited from using contracts to abrogate exceptions to copyright in non-profit scholarly and educational contexts. Article 3 of the EU’s Directive on Copyright in the Digital Single Market preserves the right for scholars within research organizations and cultural heritage institutions (like those researchers at UC) to conduct TDM for scientific research, and further proscribes publishers from invalidating this exception by license agreements (see Article 7). Moreover, under AI regulations recently adopted by the European Parliament, copyright owners may not opt out of having their works used in conjunction with artificial intelligence tools in TDM research—meaning copyrighted works must remain available for scientific research that is reliant on AI training, and publishers cannot override these AI training rights through contract. Publishers are thus obligated to—and do—preserve fair use-equivalent research exceptions for TDM and AI within the EU, and can do so in the United States, too. . . .

In all events, adaptable licensing language can address publishers’ concerns by reiterating that the licensed products may be used with AI tools only to the extent that doing so would not: i. create a competing or commercial product or service for use by third parties; ii. unreasonably disrupt the functionality of the subscribed products; or iii. reproduce or redistribute the subscribed products for third parties. In addition, license agreements can require commercially reasonable security measures (as also required in the EU) to extinguish the risk of content dissemination beyond permitted uses. In sum, these licensing terms can replicate the research rights that are unequivocally reserved for scholars elsewhere.


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Author: Charles W. Bailey, Jr.

Charles W. Bailey, Jr.