Module 5: Artificial Intelligence

Text and data mining

According to Directive (EU) 2019/790, "‘text and data mining’ means any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations". The Directive further provides a framework for the use of such techniques.

Brazil

Introduction

Brazil is currently in the process of implementing a national strategy on AI, a process which Brazil began in 2020. The strategy is holistic and considers many different aspects where Brazil is working on legislation, regulation, and AI governance with an eye to ethical use of AI and alignment with international approaches to AI. Brazil’s AI policy also puts a focus on education, workforce & training, research, development and innovation, how AI can be applied in “productive sectors” of the economy and in public bodies, and public security. The overall policy is founded on a goal of stimulating research, innovation and development of AI solutions while maintaining conscious and ethical use of AI. This national strategy is captured in policy documents, including the Brazilian Artificial Intelligence Strategy (Source: EBIA), as well as the National Strategy for Intellectual Property (ENPI, https://www.gov.br/inpi/pt-br/central-de-conteudo/noticias/cerimonia-marca-50-anos-do-inpi-e-lancamento-da-estrategia-nacional-de-propriedade-intelectual/EstratgiaNacionaldePropriedadeIntelectual.pdf) and the National Policy of Innovation.

Pursuant to the Brazilian Artificial Intelligence Strategy, Brazil is working on specific legislation for AI. An initial draft AI Act was introduced in Brazil’s lower legislative chamber (the Chamber of Deputies) in 2020 (PL 21/2020), and was subsequently sent to the upper chamber (the Senate). The Senate convened a committee of experts to hold public hearings and collect public comments, the Comissão de Juristas responsável por subsidiar elaboração de substitutivo sobre inteligência artificial no Brasil. [source: https://legis.senado.leg.br/atividade/comissoes/comissao/2504/] Other relevant draft laws were also pending in the Senate, so the Senate issued an order to combine, restructure and improve the text of these proposed laws pending input from the Committee. The Committee held meetings in 2022 and issued a final report in December 2022 with proposed changes to text. According to a press release from August 2024, the Senate is still reviewing draft AI legislation. A new draft text incorporating the recommended language from the committee of experts has been assigned bill number PL 2338/23, and it is this bill that appears to be moving forward in the Senate. The Chamber of Deputies’ original draft text PL 21/2020 has not moved forward; several other draft laws that relate to AI are also pending in the Senate. The Senate now has another commission debating the draft AI Act, which is continuing to meet regularly. [source: https://legis.senado.leg.br/atividade/comissoes/comissao/2629/] Thus, it appears Brazil is getting closer to finalizing the draft legislation.

Text and Data Mining in Brazil

With the AI legislation in Brazil not yet finalized, from a copyright perspective, Brazil law currently does not authorize text and data mining (TDM) without permission of the copyright holder. Although Brazil’s copyright act, Law No. 9.610 of February 19, 1998 (Law on Copyright and Neighboring Rights), does include some exceptions to the exclusive rights of a copyright holder, none of these exceptions (in Articles 46, 47, and 48 of ) address text and data mining. [source: https://www.wipo.int/wipolex/en/legislation/details/514]. Thus, the work that Brazil’s Senate is doing on the draft AI will be important to regulate text and data mining activities when the law is finalized and approved.

The most recent and active draft AI Act in Brazil, PL 2338/23, includes the following definition of text and data mining:

Art. 4. For the purposes of this Law, the following definitions are adopted:

[…] VIII – text and data mining: process of extracting and analyzing large amounts of data or partial or full excerpts of textual content, from which patterns and correlations are extracted that will generate relevant information for the development or use of artificial intelligence systems.

The draft law would regulate text and data mining as follows:

Art. 42. The automated use of works, such as extraction, reproduction, storage and transformation, in data and text mining processes in artificial intelligence systems, in activities carried out by research organizations and institutions, journalism and museums, archives and libraries, does not constitute an offense to copyright, provided that: I – it does not have as its objective the simple reproduction, exhibition or dissemination of the original work itself; II – the use occurs to the extent necessary for the objective to be achieved; III – it does not unjustifiably harm the economic interests of the owners; and IV – it does not compete with the normal exploitation of the works.

§ 1. Any reproductions of works for data mining activities will be kept under strict security conditions, and only for the time necessary to carry out the activity or for the specific purpose of verifying the results of scientific research.

§ 2. The provisions of the caput shall apply to the activity of data and text mining for other analytical activities in artificial intelligence systems, provided that the conditions of the items of the caput and § 1 are met, provided that the activities do not communicate the work to the public and that access to the works has been legitimate. § 3. The activity of text and data mining involving personal data shall be subject to the provisions of Law No. 13,709, of August 14, 2018 (General Personal Data Protection Law).

[source h[ttps://wolterskluwerblogs.com/copyright/wp-content/uploads/sites/49/2023/01/ARQUIVO_PORTAL_CJSUBIA_7430ComissaoESPComissaoCJSUBIA20221206-4.pdf](https://wolterskluwerblogs.com/copyright/wp-content/uploads/sites/49/2023/01/ARQUIVO_PORTAL_CJSUBIA_7430ComissaoESPComissaoCJSUBIA20221206-4.pdf)].

As noted above, this is only a draft legislation, and this could change as the draft bill is debated further in Brazil’s congress.

The draft TDM definition and exception are notable in being fairly aligned with other jurisdictions such as the European Union. Brazil’s draft definition of TDM goes so far as to stipulate that “large amounts of data or partial or full excerpts of textual content” will be permitted to be mined, which suggests even in this definition the intent to provide an exception from the existing copyright regime. The definition also limits this use to the purpose of “development or use of artificial intelligence systems.” Arguably, this language ensures that the exception will be limited to the AI field. The inclusion of TDM when AI systems are in “use” is an interesting addition, since it suggests that TDM might be permissible not only for the training stage, but also when AI is deployed.

Like other jurisdictions such as the EU, Brazil’s draft TDM exception at Article 42 provides for use of works by research organizations and cultural institutions, namely, museums, archives, and libraries. However, it also notably allows an exception for journalism, along with the scientific and cultural uses. It is also notable that draft Article 42 includes a requirement that any use of the TDM exception “does not unjustifiably harm the economic interests of the owners” or compete with or replace the original works. Like the EU, subsection (42)(1) requires security conditions and limits the time for keeping the works.

Draft section 42(2) appears to provide a broader TDM exception that is not limited to scientific research, journalism, or cultural institutions, with additional requirements that entities using 42(2) must also not communicate the work to the public and must have had legitimate access to the works in the first place. This would seem to suggest that scraping is not allowed under draft section 42(2), but possibly is allowed for scientific research, journalistic purposes, or cultural purposes. Notably, this draft broad TDM exception in 42(2) does not include any kind of mechanism for rights holders who do not wish their works to be used in TDM activities to opt-out.

Finally, draft subsection 42(3) states that Brazil’s general data privacy law does apply to TDM activities. Thus, if this proposed language becomes law, entities using the TDM exception will still have to consider data privacy.

India

The Indian Ministry of Commerce and Industry has stated that India’s existing regime of intellectual property rights (IPR) and copyright is sufficient to protect both rights holders of AI-generated works, and rights holders of content that may be used by Generative AI (e.g., training data). Consequently, the Ministry states there is no reason nor need to develop an additional regime specifically regulating AI and related innovations. As a result, there is no specific regulation to discuss relating to training data and scraping, also known as text and data mining (TDM), for AI training purposes. This paper thus focuses on aspects of the current regulatory regime that are relevant to the question of AI training data, and discusses potential limitations and criticisms of the reliance on the current regime. 

Important to note is that India also lacks regulation regarding AI generally, not just lacking regulation regarding TDM either generally or for the purposes of AI training. Despite this, the government has addressed the growing challenge of AI through publishing the National Strategy for Artificial Intelligence which highlights numerous legal and societal challenges arising from AI. This Strategy does not explicitly mention copyright or legal issues arising from TDM, but highlights privacy problems that may be relevant for TDM for training as part of the AI lifecycle.

The Indian Ministry of Commerce and Industry brings attention to a few specific aspects of the current IPR regime. Exclusive economic rights of a copyright owner are provided by the Copyright Act 1957. For generative AI to make use of copyrighted material under this act, the use must be covered under fair dealing exceptions in Section 52 of the Copyright Act 1957. Additionally, India’s personal data regulatory framework may be a relevant consideration for TDM.

1.1 The Copyright Act 1957

The Copyright Act 1957 is India’s main regulatory instrument regarding intellectual property and copyright. Section 13 of the Copyright Act 1957 highlights which works are provided copyright protections, which include (1) original literary, dramatic, musical and artistic works, (2) cinematographic films, and (3) sound recordings. Section 14 expounds on actions that are prohibited to take against copyrighted works. Most relevant is the mention of the prohibitions of “the storing of [the copyrighted work] in any medium by electronic or other means” (emphasis added). This is applicable for the cases of a literary, dramatic, or musical work, a computer programme, an artistic work, and cinematographic films, covering all types of works mentioned in the Copyright Act 1957.

1.1.1 Infringement of Copyright and Fair Dealing Exceptions

Chapter XI Copyright Act 1957 addresses infringements of copyright. Section 51 outlines when copyright will be deemed infringed, which includes when anything is done which is the exclusive right of the copyright holder (Section 51(a)(i)), and other distributions of the copyrighted work, including when it is “to such an extent to affect prejudicially the owner of the copyright” (Section 51(b)(ii)).

Section 52 outlines when certain acts are not considered an infringement of copyright, commonly known as fair dealing exceptions. Section 52(a)  excludes from infringement “a fair dealing with any work, not being a computer programme,” for the purposes of either “(i) private or personal use; including research; (ii) criticism or review [...]; [and] (iii) the reporting of current events and current affairs.” An accompanying explanation states that the storing of any copyrighted work in an electronic medium for the aforementioned purposes shall not constitute an infringement. Section 52(aa) (sic) excludes from infringements the certain actions towards copyrighted computer programmes, such as when a lawful possessor of a copy makes copies of the programme for certain purposes (Section aa(i)-(ii) (ab), (ac), (ad), …). Section 52 is expansive and outlines numerous other exceptions.

1.1.2 Application of the CRA 1957 to TDM

Generally, the Copyright Act 1957 is vague. The fair dealing exceptions in Section 52 are strict and lack any specific reference to TDM or more generally to the use of copyrighted information to develop a product as such. The Copyright Act 1957 does reference electronic storage and recent technological changes such as, for example, listing the circumvention of “an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act” (Section 65A) as an offence. However, such mentions are limited and still revolve around the (illegal) act of creating a copy of a copyrighted work. Much of the Copyright Act 1957 is focused on the illegal replication of works.

The Copyright Act’s particular focus has resulted in scholarly opinion that the Act would actually not prohibit TDM despite a lack of explicit fair dealing exception. Dr. Arul George Scaria, Co-Director of the Centre for Innovation, Intellectual Property, and Competition (CIIPC) at National Law University in Delhi, has argued for the legality of TDM under Indian copyright law. He argues that Indian copyright law only protects the expression of ideas, not facts or ideas themselves. So, when a researcher, for example, uses a copyrighted article in the course of TDM, this should be considered a non-expressive use of the work outside of copyright protection. He goes so far as to argue that it is thus “morally and legally impermissible to allow publishers to use End User Licence Agreements or other contractual tools to restrict researchers from using articles for TDM.” 

Additionally, Dr. Scaria emphasises that India’s copyright regime privileges not only the rights of the creators or copyright holders, but also the users of such works. He references theDelhi University Photocopy Shop (Single Bench) decision, wherein Justice Endlaw states that the rights of persons in Section 52, the fair dealing exception, should not be interpreted narrowly or strictly. The rights given to users should be interpreted on par with those given to creators. Lastly, Dr. Scaria argues that India’s fair dealing regime can provide the flexibility to apply to newer technological developments such as TDM. Whilst Dr. Scaria makes a compelling argument, part of that compelling argument derives from his discussion of TDM as done by researchers, rather than addressing, for example, the use of TDM to train AI for ultimately commercial purposes.

Another case did address TDM for another use, by the state. Whilst this does not explicitly address the use of TDM to train AI, it still provides perspective on how TDM might be understood in the context of India’s regulatory framework. The Supreme Court of India, in the case of Justice K.S. Puttaswamy (Retired) vs Union of India and Ors., recognised TDM’s importance for the state. The Court held that “[TDM] with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data.” However, this case addressed TDM primarily from a privacy law perspective, rather than copyright; consequently, there still is no litigation that addresses the TDM in a copyright context. This raises further concerns considering the lack of explicit inclusion of a TDM fair dealing exception in Section 52 of the Copyright Act 1957.

As a result, the likely means of justifying TDM is through Section 52(1)(a) which allows for private and personal use of copyrighted works, including for research. This provision is nuanced, wherein the making of copyrighted works publicly available to facilitate private and personal use such as by public libraries could be justified. However, the Calcutta High Court in 2013 stated that “commercial exploitation” does not fall under “private or personal use,” a position reaffirmed by the Bombay High Court in 2018. Thus, it seems that the main way in which TDM could be justified under India’s copyright regulation is through arguing that TDM does not infringe on the expression of the idea or data, and thus copyright does not apply, as argued by Dr. Scaria.

1.2 Database protection

A newer form of intellectual property rights relates to database protection, which may be relevant when it comes to TDM. India does not have an explicit database right in its intellectual property right regime, but it has recently been subsumed into its copyright regulatory framework. The Delhi High Court in Himalaya Drug Company v Sumit ruled that compilations of databases could be considered literary works and consequently covered by the Copyright Act 1957. This would mean use of compilations of databases in TDM contexts would have to fall under fair dealing exceptions in Section 52 of the Copyright Act 1957. 

1.3 Personal data mining

Another problematic aspect of data mining is the use of personal data. The source of data used for data mining can be essential, and if the data obtained is not public knowledge or obtained consensually, Indian personal protection legislation might apply. Companies and organizations that do not obtain personal data with permission or discriminate against individuals based on age, sex, gender, race, or religion are not going to be compliant with local or transnational laws. Specifically in India, data mining in such circumstances is regulated by the Information Technology Act, 2000 (IT Act) (e.g Article 43A which outlines rules on unauthorized access, sensitive personal data, and information, as well as compensation for failure to protect data), and the Personal Data Protection Bill, 2019 (PDP Bill). However, some scholars discuss that the production of Privacy Preserving Data Mining Techniquescould circumvent regulation from data protection regulation. This approach is somewhat reflected in the National Strategy for Artificial Intelligence, wherein the Indian government recommends investing in privacy-preserving AI research methods to reduce the “risks of data exploitation and personal identification (from an anonymisation dataset).”