Lawful access for text and data mining

Definition: Article 4 of the EU Directive on copyright in the Digital Single Market (DSM Directive) requires an exception for reproductions and extractions of lawfully accessible content for text and data mining, including commercial mining, subject to rights reservations. Lawful access includes content made publicly available online; access through subscriptions and open access policies is also recognised in the Directive.

Text and data mining means automated analysis of digital text and data to generate information, including patterns, trends and correlations, under Article 2(2) of the DSM Directive.

Key facts

• The DSM Directive's Article 4 makes lawful access and the absence of an appropriately expressed rights reservation conditions of the general mining exception.
• As of 17 October 2026, Germany's official Copyright Act translation, Section 44b, provides a national example: mining copies must be deleted when they are no longer needed for mining.
• Article 3 of Directive 2001/29/EC separately governs communication of works to the public, including making them available online. Publication therefore requires a separate rights assessment from making mining copies.

What counts as lawful access?

Recital 18 of the DSM Directive expressly includes works made available to the public online within lawful access for the general mining exception. Recital 14, which explains the research exception, also identifies open access policies and contractual arrangements such as subscriptions. For an institutional subscription, it identifies the people attached to the institution and covered by that subscription as having lawful access.

These provisions distinguish access to content from permission to make mining reproductions. A publicly available page can satisfy the access condition while its rights holder reserves mining rights. Likewise, a subscription provides an access route whose coverage depends on the contractual arrangement. Recital 18 expressly allows contractual agreements as a reservation method in cases other than publicly available online content.

How far does commercial mining extend?

Article 4 covers reproductions and extractions for mining without limiting beneficiaries to research institutions or requiring a scientific purpose. Recital 18 expressly describes private sector innovation and gives complex business decisions and developing new applications as examples of mining purposes.

The provision addresses specified reproduction and extraction rights involving works, databases, computer programs and press publications. Its scope follows those listed rights and the mining purpose. Public communication remains a separate right under the copyright directive.

Article 4(2) states the retention rule:

Reproductions and extractions made pursuant to paragraph 1 may be retained for as long as is necessary for the purposes of text and data mining.

For a website operator assessing a mining use, this separates the initial access route, the authority for making copies and the duration of their retention.

How do reservations and the research exception interact?

Article 4(3) makes the general exception conditional on the rights holder having refrained from expressly reserving the relevant use in an appropriate manner. For publicly available online content, recital 18 specifies machine-readable means, including metadata and website or service terms and conditions.

Article 4(4) preserves Article 3, the separate exception for scientific research by eligible research organisations and cultural heritage institutions with lawful access. A reservation under the general exception leaves that research exception intact. Article 3(2) permits secure retention for scientific research, including verification of results.

Contracts also receive different treatment. Article 7(1) makes contractual provisions contrary to the Article 3 exception unenforceable; its list omits Article 4. Access terms and mining reservations therefore need separate consideration when assessing commercial mining.

Related terms

• Text and data mining opt-out (EU)
• Research text and data mining exception
• German text and data mining exception
• Content licensing

FAQ

Can you mine a public webpage for a commercial project?

Article 4 can cover that purpose when access is lawful and the relevant use remains unreserved in the required manner. Copies can be retained for as long as the mining requires.

Does your subscription automatically include mining permission?

A subscription can provide lawful access, as explained in recital 14 of the DSM Directive. For commercial mining under Article 4, you also need to assess any applicable mining reservation, including contractual reservations where appropriate.

Can you publish the copied material after mining it?

Publication needs its own rights assessment: Article 3 of Directive 2001/29/EC gives authors a right to authorise or prohibit public communication. The mining exception concerns reproductions and extractions for the mining purpose.

Sources

1. European Parliament and Council, "Directive (EU) 2019/790", 17 April 2019
2. Federal Ministry of Justice and Federal Office of Justice, "Copyright Act, Section 44b", English translation incorporating amendments of 23 October 2024
3. European Parliament and Council, "Directive 2001/29/EC", 22 May 2001

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