Although the Institute`s participants focused on copyright issues, many indicated that they had resolved their copyright issues and raised their ethical issues. As one participant wrote, the institute «erased my fears in target areas and introduced entirely new considerations in areas such as ethics. That answered my questions and got me thinking. We believe that ethical issues play a major role not only because of the crucial importance of ethics in large-scale data processing, but also because of the relative lack of guidelines and best practices to help us in this area. The wording of recital 5 of Directive 2019/790/EU refers to research, innovation, education and preservation of cultural heritage. In recital 5 of that new directive on copyright in the MUN, the EU legislature refers in a nuanced manner to Article 5(3)(a) of the GDPR. a Directive 2001/29/EC (InfoSoc Directive), which provides for non-mandatory exceptions or limitations to the reproduction right provided for in Article 2 of the InfoSoc Directive and to the right of communication to the public of works and the right to make available to the public other protected subject matter protected by copyright. Article 5(3)(a) of the InfoSoc Directive provides that Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 where, inter alia, they are used exclusively for the purpose of illustration for teaching purposes or scientific research, provided that the source, including the name of the author, unless this proves impossible and to the extent that: justified by the non-commercial objective to be achieved. Not all EU members have adopted the provision of Article 5(3)(a) of the InfoSoc Directive, and among EU members that have transposed this provision into their national law, there are significant differences in the texts and protection of national laws. The provision of Article 5(3)(a) of the InfoSoc Directive was not properly regarded as a sufficient legal basis for SLM. In particular: Article 5(3)(a) of the InfoSoc Directive allows Member States to provide for exceptions and limitations to use for scientific research purposes. According to Article 5(3)(a) of the InfoSoc Directive, Member States may grant derogations for «use for illustrative purposes solely for teaching or research purposes, provided that the source, including the name of the author, is indicated, unless this proves impossible and to the extent justified by the non-commercial purpose to be achieved».

This exception is optional in the acquis communautaire, which means that the question of its implementation has been left to the Member States. As a result, Member States currently have different rules and regulations in this regard, and some countries, such as Greece, the Netherlands and Spain, do not recognise any exemptions for research. While research is the exploration of a particular topic to find data or other types of information or to obtain ideas, «scientific» research must be conducted methodically and systematically. The beneficiaries of the exception or limitation to scientific research provided for in Article 5(3)(a) of the InfoSoc Directive are mainly professors, researchers and students of universities and similar establishments, but may also be others, such as lawyers or practising doctors, when they carry out scientific research with a view to drafting an article or enquiring about the state of the art; Individuals may also be beneficiaries if they conduct research using scientific methods.3x M. Walter, S.V. Lewinski, European Copyright Law – A Commentary (2010), p. 1043. Scientific research is mainly used for the reproduction of documents (see Article 9(2) of the Berne Convention) and possibly the posting of documents online.4x Ibid. Broadcasting or other traditional forms of communication to the public seem to have little importance for the use of scientific research in practice.

The Berne Convention and other international laws do not permit any restrictions on the right of communication to the public, including broadcasting, for the purpose of scientific research; Article 10(2) of the Berne Convention concerns only teaching and the three-step test of Article 9(2) concerns only the right of reproduction. Accordingly, Article 5(3)(a) of the InfoSoc Directive must be interpreted in the light of international copyright law and the term `use` must therefore be understood as not covering communication in a traditional form.