In August 2022, the UC Berkeley Library and Internet Archive were awarded a grant from the National Endowment for the Humanities (NEH) to study legal and ethical issues in cross-border text and data mining (TDM).
The project, entitled Legal Literacies for Text Data Mining – Cross-Border (“LLTDM-X”), supported research and analysis to address law and policy issues faced by U.S. digital humanities practitioners whose text data mining research and practice intersects with foreign-held or -licensed content, or involves international research collaborations.
LLTDM-X built upon the previous NEH-sponsored institute, Building Legal Literacies for Text Data Mining. That institute provided training, guidance, and strategies to digital humanities TDM researchers on navigating legal literacies for text data mining (including copyright, contracts, privacy, and ethics) within a U.S. context.
A common challenge highlighted during the institute was the fact that TDM practitioners encounter expanding and increasingly complex cross-border legal problems. These include situations in which: (i) the materials they want to mine are housed in a foreign jurisdiction, or are otherwise subject to foreign database licensing or laws; (ii) the human subjects they are studying or who created the underlying content reside in another country; or, (iii) the colleagues with whom they are collaborating reside abroad, yielding uncertainty about which country’s laws, agreements, and policies apply.
We designed LLTDM-X to identify and better understand the cross-border issues that digital humanities TDM practitioners face, with the aim of using these issues to inform prospective research and education. Secondarily, we hoped that LLTDM-X would also suggest preliminary guidance to include in future educational materials. In early 2023, we hosted a series of three online round tables with U.S.-based cross-border TDM practitioners and law and ethics experts from six countries.
The round table conversations were structured to illustrate the empirical issues that researchers face, and also for the practitioners to benefit from preliminary advice on legal and ethical challenges. Upon the completion of the round tables, the LLTDM-X project team created a hypothetical case study that (i) reflects the observed cross-border LLTDM issues and (ii) contains preliminary analysis to facilitate the development of future instructional materials.
We also charged the experts with providing responsive and tailored written feedback to the practitioners about how they might address specific cross-border issues relevant to each of their projects.
Guidance & Analysis
Extrapolating from the issues analyzed in the round tables, the practitioners’ statements, and the experts’ written analyses, the Project Team developed a hypothetical case study reflective of “typical” cross-border LLTDM issues that U.S.-based practitioners encounter. The case study provides basic guidance to support U.S. researchers in navigating cross-border TDM issues, while also highlighting questions that would benefit from further research.
The case study examines cross-border copyright, contracts, and privacy & ethics variables across two distinct paradigms: first, a situation where U.S.-based researchers perform all TDM acts in the U.S., and second, a situation where U.S.-based researchers engage with collaborators abroad, or otherwise perform TDM acts in both U.S. and abroad.
The LLTDM-X white paper provides a comprehensive description of the project, including origins and goals, contributors, activities, and outcomes. Of particular note are several project takeaways and recommendations, which we hope will help inform future research and action to support cross-border text data mining. Our project takeaways touched on seven key themes:
- Uncertainty about cross-border LLTDM issues indeed hinders U.S. TDM researchers, confirming the need for education about cross-border legal issues;
- The expansion of education regarding U.S. LLTDM literacies remains essential, and should continue in parallel to cross-border education;
- Disparities in national copyright, contracts, and privacy laws may incentivize TDM researcher “forum shopping” and exacerbate research bias;
- License agreements (and the concept of “contractual override”) often dominate the overall analysis of cross-border TDM permissibility;
- Emerging lawsuits about generative artificial intelligence may impact future understanding of fair use and other research exceptions;
- Research is needed into issues of foreign jurisdiction, likelihood of lawsuits in foreign countries, and likelihood of enforcement of foreign judgments in the U.S. However, the overall “risk” of proceeding with cross-border TDM research may remain difficult to quantify; and
- Institutional review boards (IRBs) have an opportunity to explore a new role or build partnerships to support researchers engaged in cross-border TDM.
Gratitude & Next Steps
Thank you to the practitioners, experts, project team, and generous funding of the National Endowment for the Humanities for making this project a success.
We aim to broadly share our project outputs to continue helping U.S.-based TDM researchers navigate cross-border LLTDM hurdles. We will continue to speak publicly to educate researchers and the TDM community regarding project takeaways, and to advocate for legal and ethical experts to undertake the essential research questions and begin developing much-needed educational materials. And, we will continue to encourage the integration of LLTDM literacies into digital humanities curricula, to facilitate both domestic and cross-border TDM research.
[Note: this content is cross-posted on the LLTDM blog.]
We are excited to announce that the National Endowment for the Humanities (NEH) has awarded nearly $50,000 to UC Berkeley Library and Internet Archive to study legal and ethical issues in cross-border text data mining. The funding was made possible through NEH’s Digital Humanities Advancement Grant program.
NEH funding for the project, entitled Legal Literacies for Text Data Mining – Cross Border (“LLTDM-X”), will support research and analysis to address law and policy issues faced by U.S. digital humanities practitioners whose text data mining research and practice intersects with foreign-held or -licensed content, or involves international research collaborations.
LLTDM-X builds upon the highly successful Building Legal Literacies for Text Data Mining Institute (Building LLTDM), previously funded by the NEH in 2019. UC Berkeley Library directed Building LLTDM in June 2020, bringing together expert faculty from across the country to train 32 digital humanities researchers on how to navigate law, policy, ethics, and risk within text data mining projects. (All of the results and impacts are summarized in the white paper here.)
In Building LLTDM’s instructional sessions and post-workshop evaluations, participants identified cross-border research collaborations as an ongoing and critical legal and policy problem, and they also noted that foreign law and ethics issues pervaded their research. UC Berkeley Library’s Office of Scholarly Communication Services partnered with Internet Archive to begin to address these essential needs, and LLTDM-X sprung to life.
Why is LLTDM-X needed?
Text data mining, or TDM, is an increasingly essential and widespread research approach. TDM relies on automated techniques and algorithms to extract revelatory information from large sets of unstructured or thinly-structured digital content. These methodologies allow scholars to identify and analyze critical social, scientific, and literary patterns, trends, and relationships across volumes of data that would otherwise be impossible to sift through.
While TDM methodologies offer great potential, they also present scholars with nettlesome law and policy challenges that can prevent them from understanding how to move forward with their research. Building LLTDM trained TDM researchers and professionals on essential principles of copyright, licensing, and privacy law, as well as ethics—thereby helping them move forward with impactful digital humanities research.
As Building LLTDM revealed, United States digital humanities scholars do not conduct text data mining research only in or about the U.S. Further, digital humanities research in particular is marked by collaboration across institutions and geographical boundaries. Yet, U.S. practitioners encounter expanding and increasingly complex cross-border problems.
For example, U.S. contract law may supersede rights under copyright, such that a U.S. database license agreement may prohibit text data mining and other fair uses, whereas UK licenses cannot. Therefore U.S. TDM practitioners collaborating with UK-based colleagues face impactful choices about which agreements to apply, as this may determine whether text data mining is permitted. In the U.S., “breaking” technological protection measures to conduct text data mining is now authorized within certain parameters, yet other jurisdictions prohibit such work or apply different conditions. U.S. text data mining researchers must accordingly consider how they work with internationally-held or -licensed materials or collaborators.
There are at least three such “cross-border” TDM scenarios that scholars must parse, including: (i) if the materials they want to mine are housed in a foreign jurisdiction, or are otherwise subject to foreign database licensing or laws; (ii) if the human subjects they are studying or who created the underlying content reside in another country; or, (iii) if the colleagues with whom they are collaborating reside abroad, yielding uncertainty about which country’s laws, agreements, and policies apply. These may collectively be considered the “cross-border” TDM scenarios.
U.S. researchers are uncertain about how to navigate each of these scenarios. As evidenced in an informal survey that we conducted with digital humanities scholars, 70% of respondents reported cross-border copyright questions, 72% reported uncertainty about cross-border licensing terms, 52% noted privacy issues, and 48% identified ethical concerns. This confusion greatly impacted their TDM research. Twenty-eight percent (28%) of respondents confirmed that these cross-border copyright, licensing, privacy, or ethical issues impeded or prevented their project entirely. Of equal concern is that 40% of responding practitioners reported hesitation to share their workflows, methodology, or sources because of possible cross-border LLTDM issues. Without transparency, findings are deemed unreliable and scholarship may be rejected for publication. These problems will only mount given the increasing collaborativeness of research and the substantial amount of cross-border research occurring.
How will LLTDM-X help the world?
Our long-term goal is to design instructional materials and institutes to support digital humanities TDM scholars facing cross-border issues, but our first step with LLTDM-X is getting a better handle on the specific law and policy challenges they face.
Through a series of virtual roundtable discussions, and accompanying legal research and analysis, LLTDM-X will surface these cross-border issues and begin to distill preliminary guidance to help scholars in navigating them.
The first roundtable will engage U.S. digital humanities text data mining practitioners in sharing their cross-border TDM experiences. U.S. and global law and ethics experts will help guide the roundtable discussion to elicit the contours of practitioner experiences. During two subsequent roundtables—one focusing on cross-border copyright and licensing, and another on cross-border privacy and ethics—the experts will discuss practitioners’ hurdles in depth, and begin to develop customized guidance.
After the roundtables, we will work with the law and ethics experts to create instructive case studies that reflect the types of cross-border TDM issues practitioners encountered. These case studies will incorporate recommendations to help a broad audience of U.S. digital humanities text data mining practitioners navigate LLTDM-X concerns. Case studies, guidance, and recommendations will be widely-disseminated via an open access report to be published at the completion of the project. And most importantly, they will be used to inform our future educational offerings.
An experienced team
The team for LLTDM-X (introduced below) is eager to get started. The project is co-directed by Thomas Padilla, Deputy Director, Archiving and Data Services at Internet Archive.
“LLTDM-X responds strategically to a pervasive challenge that needlessly complicates, inhibits, and weakens the fullest potential of research. This work paves a critical path toward building future training institutes that address cross-border legal issues in TDM. At Internet Archive we’re committed to supporting universal access to all knowledge—LLTDM-X couldn’t be more clearly aligned with what we hope to achieve. We look forward to working with our partners at UC Berkeley Library and the wider community to advance this work.”
Rachael Samberg, who leads UC Berkeley Library’s Office of Scholarly Communication Services and oversaw Building LLTDM, joins Thomas as co-director and explains that:
“We are ready to begin analyzing and sorting out the complex legal challenges for digital humanities TDM researchers. We’ve already secured an incredible group of international legal and ethics experts to conduct the analyses, and will share more on that soon. In the meantime, we are gearing up to build out an even larger group of participating scholars whose experiences will help us create case studies.”
On behalf of the entire project team, we would like to thank NEH’s Office of Digital Humanities again for funding this important work. We invite you to contact us with any questions you may have.
Thomas Padilla (Project Director): Thomas is Deputy Director, Archiving and Data Services at Internet Archive, and has deep experience cultivating library, archive, and museum ability to support TDM research. He has previously served as Principal Investigator of the Andrew W. Mellon supported Collections as Data: Part to Whole, the Institute of Museum and Library Services supported, Always Already Computational: Collections as Data, and as author of the library community research agenda, Responsible Operations: Data Science, Machine Learning, and AI in Libraries. In addition, Padilla was an expert faculty for Building LLTDM, the precursor to LLTDM-X.
Rachael Samberg (Project Co-Director): Rachael is Scholarly Communication Officer & Program Director of the University of California, Berkeley Library’s Office of Scholarly Communication Services. She served as Project Director and legal expert for Building LLTDM. A Duke Law graduate, Rachael practiced intellectual property litigation at Fenwick & West LLP for seven years before spending six years at Stanford Law School’s library, where she was Head of Reference & Instructional Services and a Lecturer in Law. Rachael speaks throughout the country about copyright and TDM issues, about which she is widely published. Her chapter, Law & Literacy in Non-Consumptive Text Mining, was published in Copyright Conversations (ALA, 2019).
Stacy Reardon (Project Team Member): Stacy Reardon is Literatures and Digital Humanities Librarian at the University of California, Berkeley Library, where she provides guidance and instruction on digital humanities projects and methods. Stacy served as a library expert on the Project Team for the NEH-funded Building Legal Literacies for Text Data Mining. She is co-chair of the UC Berkeley’s Digital Humanities Working Group, and received her Ph.D. in literature from the University of Massachusetts, Amherst.
Timothy Vollmer (Project Manager): Timothy Vollmer is Scholarly Communication and Copyright Librarian at UC Berkeley Library. He served as Project Manager for the NEH-funded Building Legal Literacies for Text Data Mining. Tim worked as a senior public policy manager for Creative Commons, and contributed to writing and advocacy on the text data mining exceptions in the EU’s Directive on Copyright in the Digital Single Market. He formerly was the Assistant Director to the Program on Public Access to Information at the American Library Association.