Does lawful access under the Slovenian TDM exceptions also include content that is freely available online?

To answer that question, I submitted a complaint to the European Commission in June 2024 alleging that the Republic of Slovenia had not properly implement the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (hereinafter: the CDSM Directive). The complaint argued that Articles 57.a and 57.b of the Slovenian Copyright and Related Rights Act (hereinafter: ZASP), which regulate the exceptions for text and data mining (hereinafter: TDM exceptions), fail to explicitly provide that the notion of “lawful access” includes content that is freely available online. The European Commission did not initiate infringement proceedings against Slovenia, reasoning that although the Slovenian implementation does not explicitly mention freely available online content as part of the notion of lawful access, it also does not expressly exclude it. Consequently, it may be interpreted that freely available online content forms part of lawful access under the TDM exceptions in ZASP.

For researchers and others building artificial intelligence models in Slovenia, it is of significant importance whether the TDM exceptions in Articles 57.a and 57.b of ZASP permit text and data mining on freely available online content, even though the Slovenian legislator did not expressly include such content when defining “lawful access” in ZASP.

Indeed, the Slovenian legislator has defined the notion of lawful access in ZASP more narrowly than the European legislator in Recital 14 of the CDSM Directive. Under ZASP, lawful access is understood to mean access based on free and open licenses, contracts, or other legal grounds such as copyright limitations and exceptions, or special legislation (e.g. the Legal Deposit Act). The wording does not explicitly extend to content that is freely available online. Nevertheless, it remains possible that, in the event of litigation, Slovenian courts would interpret ZASP more broadly and, taking into account Recital 14 of the CDSM Directive, conclude that lawful access also encompasses freely available online content.

To enhance legal certainty for researchers, I raised the question of whether “lawful access” under Articles 57.a and 57.b of ZASP includes freely available online content in the complaint (Ref. CPLT(2024)01829) of 30 June 2024 against the Republic of Slovenia for alleged improper transposition of the CDSM Directive. The European Commission concluded the procedure on 2 April 2025 and issued its position on the interpretation of “lawful access” in Slovenian law. The Commission decided not to initiate infringement proceedings against Slovenia, concluding that although the Slovenian implementation does not expressly mention freely available online content as part of lawful access, neither does it explicitly exclude it. It therefore considered that the CDSM Directive had been implemented into ZASP in accordance with its purpose as reflected in the recitals.

As a result, it shall be inferred that the relevant provisions of ZASP should be interpreted in light of Recital 14 of the CDSM Directive, which suggests that lawful access under ZASP may indeed include access to content that is freely available online.