Intellectual Property and Data Mining in the So-Called “Omnibus Law” in Chile. Problems and Risks of the New Exception

Abstract

This paper analyzes, from an interdisciplinary perspective that combines legal analysis with categories from political economy and sociology, the text and data mining exception incorporated into Chile's so-called "Miscellaneous Law" and its implications for the Chilean intellectual property system. It argues that, under the appearance of a technical adjustment intended to enable statistical analysis of large volumes of data, the provision introduces a broad authorization to reproduce and process protected works without permission or remuneration. The main problem lies in the imprecision of the concept of "statistical analysis," which fails to adequately distinguish between analytical uses and those that may result in products or services competing with the original works. Likewise, the lack of a clear definition of "exploitation" creates a space of indeterminacy in which the commercialization of derived data may approach the economic exploitation of the works. To this can be added the absence of traceability mechanisms and the lack of limits on the instrumental character of reproduction, which allows the accumulation of works in potentially marketable databases. Taken together, these shortcomings blur the boundary between analytical use and indirect access to protected content. The paper concludes that the exception produces significant distributive effects, shifting value from creators toward technologically capable actors —a structural transfer of value that the social sciences help to identify as characteristic of these processes— and that its retention requires the incorporation of safeguards to ensure a balance compatible with the existing legal framework.