Text and Data Mining under Omani Copyright Law

Similar to the copyright laws of other Gulf states, the Omani copyright law adopts the exhaustive closed list system for copyright exceptions. This means that for a use of a protected work not to be considered an infringement, that use must fall under an explicitly stated exception under the copyright law. The fact that a use is personal, non-commercial, or accompanied by proper attribution, on its own, is not sufficient to protect the use against claims of copyright infringement. This is different from copyright laws that adopt a flexible copyright exception system, such as ‘fair use’ in the USA, where any use may be permitted, even if not explicitly mentioned in the law, as long as the use can be considered ‘fair’.

Copyright laws that adopt a flexible copyright exception, such as the US copyright law, are capable of enabling new innovative uses of technology without the need for the actual law to be amended, whereas copyright laws that adopted a closet list of exceptions, such as the Omani copyright law, are usually incapable of accommodating for new technological uses without amending the law.

An example of such a new technological use is the practice of ‘text and data mining’ – a research method that uses computer software to analyse massive amounts of data to look for interesting trends. As an illustration, text and data mining can examine thousands of medical records to identify links between certain symptoms and diseases in a way that cannot be done by a human individual. Similarly, such method can be used in the study of law to electronically analyse massive amounts of court decisions to identify trends and connections between different legal key terms. Due to the way text and data mining works, the computer software making the analysis must copy the data, at least temporarily. Because the Omani copyright law does not have an exception to permit copying in this specific case, text and data mining is considered an activity that violates copyright law if the permission of the author is not acquired. It is not practically possible to acquire permission for many text and data mining cases because the data is extremely massive in size and there is no way for the researcher to go and seek the permission of every single author of such data. If the data examined is public data on the internet, such as tweets or other user generated content, it might not be possible to even identify the author of the work.

This would not have been the case had the Omani copyright law adopted a flexible copyright exception like fair use. Under such a system, it would be possible to argue that text and data mining is permitted as long as the use satisfies the conditions for fair use. This does not only mean that legislators in countries like the USA do not have to waste their time amending the copyright law every time a new technology comes out, but this also makes the USA a much more attractive environment for the adoption of new technologies, such as text and data mining for research, because their law is flexible enough to permit it.

The copyright exceptions currently offered by the Omani copyright law are inadequate and do not satisfy some of the most basic needs of users in the country (we are the only country in the GCC that does not have a private use exception). Oman needs to have a text and data mining to enable the use of this method by researchers in the country. Oman should also reconsider the general way in which it implements exceptions under the copyright law and must seriously take into consideration the needs of the members of society when determining this issue.

Educational Exceptions for Copyright Infringement

Education Exceptions to Copyright
(Photo credits: Thomas Favre-Bulle)

There are a number of exceptions for copyright in the UK under the CDPA 1988, these defences vary in scope and have different requirements.

  • Copying for the purpose of instruction and examination

Section 32(1) provides a defence against copyright infringement for copying literary, dramatic, musical, or artistic works, carried out for educational purposes if it was carried in the course of, or in preparation for, instruction. There are four conditions for this defence to stand:

  1. Copying must be done by a person either giving or receiving the instruction.
  2. The instruction must be for a non-commercial purpose.
  3. Copying must not be done by means of a reprographic process.
  4. Copying must be accompanied by sufficient acknowledgment.

This defence can be used for published or unpublished works.

Section 32A has a similar defence which can be used for non-commercial or commercial purposes, as long as the following conditions are satisfied:

  1. The work copied is already available to the public.
  2. Copying must be done by a person either giving or receiving the instruction.
  3. The copying is fair dealing.
  4. Copying must not be done by means of a reprographic process.
  5. Copying must be accompanied by sufficient acknowledgment.

Both of these defences have a very limited effect due to the requirement for the copying to be made through non-reprographic means (Bently). The definition of ‘reprographic’ is found in CDPA Section 30 (1A) and it includes digital copying. The exception is meant to primarily allow handwritten copying to be done and not much else.

Section 32(2) provides a defence for film-making instruction by allowing copying sound recording, film, broadcast when making a film or a film soundtrack in the course of, or in preparation, for instruction in the field of making film or film sound tracks.

There are three conditions for this defence to stand:

  1. The copying must be carried out by a person either giving o receiving the instruction.
  2. Copying is accompanied by sufficient acknowledgment.
  3. The instruction is carried out for a non-commercial purpose.

Finally, Section 32(3) provides a defence for examinations, in that anything done by way of setting the questions, communicating the questions to the candidates or answering the questions, will not infringe copyright.

  • Copying for Creating Anthologies And Collections

Section 33 provides a defence for copying short passages from published literary or dramatic works if included in a collection that is intended for use in an educational establishment.

There are three conditions for this defence to stand:

  1. The collection consists mainly of material in which no copyright subsists.
  2. The inclusion is accompanied by sufficient acknowledgment.
  3. The inclusion does not involve more than 2 excerpts from copyright works of the same author in collections published by the same publisher over any period of five years.

There is no clear definition of what short is, but if it was insubstantial then it won’t be considered as an infringement for a defence to be even necessary (Bainbridge). The requirement for cap on the number of excerpts and the period of publication is also a very restrictive requirement (Bently).

  • Performing, Playing, or Showing Works in an Educational Institute

Section 34(1) provides a defence for performing, playing, or showing literary, dramatic, or musical works by deeming the act not a public performance as long as it satisfies the following conditions:

  1. The performance is made before an audience of teachers and students at an educational institute.
  2. The performance is carried out by a teacher, pupil, or any other person for the purpose of instruction.

This means that performance by anyone before students in a drama class would benefit from the defence, but not before an audience of parents as parents are not connected to the activities of an educational establishment.

Section 34(2) provides a defence for displaying a film before students for the purpose of instruction. This defence cannot be used though by film student societies as the display would be made for fun and not education (Bently).

  • Recording of Broadcasts by an Educational Institute

Section 35 provides a defence against copyright infringement for educational establishments to make a recording of a broadcast, or copy such a recording, for educational purposes of that establishment as long as the following conditions are satisfied:

  • There is no appropriate licensing scheme.
  • Copying is accompanied by sufficient acknowledgment.
  • The educational purposes are are non-commercial.

Bently states that this defence is of no significant effect as most educational establishments  have entered into a number of relevant certified licensing schemes.

  • Reprographic Copying

Section 36 provides a defence against copyright infringement for the reprographic copying of literary, dramatic, or musical works by educational institutes as long as the following conditions are satisfied:

  • Copying does not exceed 1% of the work per quarter of year.
  • Copying is made for non-commercial instruction purposes.
  • Sufficient acknowledgment is made as long as it is not practically impossible.
  • There are no licensing schemes available.

Bently states that this defence has a limited effect due to the existence of licensing agreements. Bainbridge finds the defence pointless as he doesn’t consider copying less than 1% to be a substantial part of the work and therefore that action would not be considered as copyright infringement anyway. Bainbridge cites Hawkes & Son (London) Ltd v Paramount Film Services Ltd [1934] as a case indicating the difference between a substantial and insubstantial part of a copyright work.

  • Lending of Copies

Section 36A provides a defence allowing educational institutes to lend copies of copyright works.