EU Copyright Law Research Articles

Infringing AI: Liability for AI-Generated Outputs under International, EU, and UK Copyright Law

Abstract The analysis of liability aspects facing Artificial Intelligence (‘AI’)-generated outputs under copyright and related rights has been overlooked compared to other issues connected to the development and use of AI. This study fills this gap by exploring pertinent questions under international, EU and UK law. Specifically, the study tackles actionable reproduction, allocation of liability, and availability of defences. The analysis ultimately shows that, while it is clear that each case will need to be decided on its own merits, the generative AI output phase raises several profiles of liability under copyright law. If the goal of policymakers and relevant stakeholders is to ensure the balanced and sustainable development of AI, then the issues related to the generation and dissemination of AI outputs need to be given ample attention and a greater role in the debate than what has been the case so far, whether it is in the context of risk assessment and compliance, licensing initiatives, or in contentious scenarios.

The Unproductive “Overconstitutionalization” of EU Copyright and Trademark Law – Fundamental Rights Rhetoric and Reality in CJEU Jurisprudence

In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.

Copyright protection during the training stage of generative AI: Industry-oriented U.S. law, rights-oriented EU law, and fair remuneration rights for generative AI training under the UN's international governance regime for AI

Generative AI relies on simulating and learning from complex data distributions to automatically generate new, meaningful content from large datasets. Training generative AI models carries the risk of copyright infringement. How can we balance the development of generative AI technology with copyright protection during the training stage of these models? In contrast to existing legal scholarship, this article conducts a comparative study of industry-oriented U.S. copyright law and rights-oriented EU copyright law. It draws insights from the concepts of the tragedy of the commons and the tragedy of the anti-commons, proposing the creation of fair remuneration rights for Generative AI training under the UN's international governance regime for AI. This article offers a typological analysis of potential operational models for fair remuneration rights in Generative AI training, drawing analogies to existing remuneration rights in international copyright treaties. The goal is to provide an open framework for further discussion within the international academic community.

Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights

Abstract The legal frameworks that govern access to information are essential for safeguarding a sustainable, creative ecosystem. Institutions, such as libraries, research organizations, educational and other cultural heritage institutions, are gateways to diverse collections of scientific production, media and other cultural artefacts. Enabling access to creative works requires careful balancing of the interest of creators, producers of information, publishers and users of that information. While copyright law has traditionally recognized that rightholders enjoy exclusive rights, courts have only recently emphasized that users of works must also enjoy rights, which better reflects that copyright is based on a social contract with reciprocal obligations. This study explores what positive obligations must be imposed on rightholders as a consequence of the rights users enjoy under copyright law. Although specific access-enabling mechanisms already exist in EU copyright law, they are often not properly implemented or lack efficient enforcement tools. For that purpose, certain exceptions and limitations must be made mandatory, prohibitions on contractual override must apply horizontally, privileged institutions should enjoy enforceable rights to obtain copies on reasonable terms, and the existing ‘lending’ right must become a ‘right to lend’. Supporting these substantive changes is the proposal for a new governance structure for the EU copyright framework through the establishment of an independent EU regulatory body. It is only through a blend of changes that copyright can serve society and that a sound ecosystem for creators and creativity is set up making the EU fit for the knowledge economy.

Protection of Press Publishers in the Age of Generative AI – In Search of Legal Remedies to Adapt to the Pace of Technology

AbstractHas everything already been said on the protection of press publishers? Surely not, and this is due to the new challenges for the press sector posed by Generative AI. This paper aims to discuss the solutions adopted in EU copyright law to safeguard the legal situation of press publishers in the face of the development of Generative AI. It identifies the shortcomings in existing forms of protection and proposes legal remedies for those shortcomings. It offers a fresh perspective on and insights into the new challenges posed by Generative AI, especially regarding its training phase. It explores the approach taken by EU legislation, and also makes reference to solutions proposed in the United States. The objective of this paper is to strike a balance between the need to ensure proper conditions for innovation and the need to protect human creativity and the dissemination thereof. It seeks to contribute to the ongoing debate on copyright and AI by assessing how the current copyright framework suits the development of Generative AI, identifying gaps in protection and paving the way for necessary legal changes in a context of transparency, compensation for use of protected content for AI training purposes, and preservation of rights.

Oops, I Sampled Again … the Meaning of “Pastiche” as an Autonomous Concept Under EU Copyright Law

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

Laughing Is Not an Exception! An Italian Perspective on the Autonomous Protection of Parodies Beyond Elaboration

This paper analyses the legal regime of parodistic work from an Italian and European copyright law perspective. Taking into consideration that the Italian Copyright Act does not contain any specific parody exception, the author maintains that parodistic works cannot fall within the scope of the quotation and criticism exception. Based on the fact that, as is well known, EU copyright law does not allow Member States and national courts to apply a general “fair use” doctrine to support the lawfulness of using another’s work for parodistic purposes, it is argued that the use of a previous work to create a new parodistic work falls beyond the scope of copyright protection, and that the creation and commercialisation of a parodistic work cannot be prohibited by the author of the parodied work, since the former does not amount to an elaboration of the latter.

Copyright Protection for AI-Generated Works: Exploring Originality and Ownership in a Digital Landscape

Abstract This research explores AI-generated originality's impact on copyright regulations. It meticulously examines legal frameworks such as the Berne Convention, EU Copyright Law, and national legislation. Rigorously analyzing cases, including Infopaq International A/S v Danske Dagblades Forening and Levola Hengelo BV v Smilde Foods BV, illuminates evolving originality and human involvement in AI creativity. The study also contemplates global perspectives, drawing from esteemed organizations such as the World Intellectual Property Organization and the European Court of Justice and exploring diverse approaches adopted by individual nations. The paper emphasizes the imperative need for legislative updates to address the challenges and opportunities of AI-generated works. It highlights the pivotal role of international collaboration and public awareness in shaping copyright policies for the AI-driven creativity era. It also offers insights and recommendations for policymakers and researchers navigating this complex terrain.

СТАНДАРТ ОРИГІНАЛЬНОСТІ В АВТОРСЬКОМУ ПРАВІ ЄС ТА УКРАЇНИ: ПОРІВНЯЛЬНИЙ АСПЕКТ

Background. In the article, a comparative study of the criterion of the originality of the author's work according to the copyright legislation of the EU and Ukraine is carried out in the context of the harmonization of Ukrainian legislation with EU law in this area. Relevance of the study is determined by the active process of harmonization of copyright legislation of Ukraine with EU copyright law, as a result of which the determination of the criterion of originality of the work and its compliance with the provisions of EU copyright law deserves special attention. Purpose of the article is a comprehensive comparative study of the criterion of originality of the work according to the copyright legislation of Ukraine and EU law in this area. Methods. During the work on the research, a number of general scientific and special research methods were used. In particular, the concept of originality of the work was defined using the method of dialectics. Approaches to understanding the concept of "originality of a work" under Ukrainian copyright law and EU law in this area were analyzed on the basis of methods of analysis and synthesis. Approaches to understanding the concept of "originality of a work" in copyright legislation of Ukraine and EU law were compared using the comparison method. Based on the method of generalization, conclusions and proposals were formulated based on the conducted research. Results. Based on the results of the research, the conceptual proximity of the provisions of the current copyright legislation of Ukraine and the EU law regarding the definition of the originality criterion was established, and the specificity of each of the outlined approaches was also noted. In addition, the national judicial practice and the practice of the EU Court were analyzed regarding the definition of the criterion of originality of the work and the granting of copyright protection to the latter. Conclusions. Thus, one cannot speak of complete identity in the understanding of the standard of originality of a work in the copyright legislation of Ukraine and EU law, because there are certain nuances that indicate the uniqueness of each of the approaches. However, in general, the legislative consolidation of the criterion of the originality of the work in the copyright legislation of Ukraine is a noticeable step on the way to the harmonization of Ukrainian legislation in the field of copyright and related rights with EU law in this area. Thus, EU and Ukraine certainly share a common conceptual framework in their approaches to understanding it.

Gazing into an abyss: defining the non-protected abstract matters in EU copyright law

Gazing into an abyss: defining the non-protected abstract matters in EU copyright law

Copyright Law and the Lifecycle of Machine Learning Models

Machine learning, a subfield of artificial intelligence (AI), relies on large corpora of data as input for learning algorithms, resulting in trained models that can perform a variety of tasks. While data or information are not subject matter within copyright law, almost all materials used to construct corpora for machine learning are protected by copyright law: texts, images, videos, and so on. There are global policy moves to address the copyright implications of machine learning, in particular in the context of so-called “foundation models” that underpin generative AI. This paper takes a step back, exploring empirically three technological settings through detailed case studies. We set out the established industry methodology of a lifecycle of AI (collecting data, organising data, model training, model operation) to arrive at descriptions suitable for legal analysis. This will allow an assessment of the challenges for a harmonisation of rights, exceptions and disclosure under EU copyright law. The three case studies are:Machine learning for scientific purposes, in the context of a study of regional short-term letting markets;Natural Language Processing (NLP), in the context of large language models;Computer vision, in the context of content moderation of images.We find that the nature and quality of data corpora at the input stage is central to the lifecycle of machine learning. Because of the uncertain legal status of data collection and processing, combined with the competitive advantage gained by firms not disclosing technological advances, the inputs of the models deployed are often unknown. Moreover, the “lawful access” requirement of the EU exception for text and data mining may turn the exception into a decision by rightholders to allow machine learning in the context of their decision to allow access. We assess policy interventions at EU level, seeking to clarify the legal status of input data via copyright exceptions, opt-outs or the forced disclosure of copyright materials. We find that the likely result is a fully copyright-licensed environment of machine learning that may have problematic effects for the structure of industry, innovation and scientific research.

A Narrative Approach to the Standard of Originality in EU Copyright Law: The Story of a Dress

A Narrative Approach to the Standard of Originality in EU Copyright Law: The Story of a Dress

Exceptions as users’ rights in EU copyright law

Exceptions as users’ rights in EU copyright law

Rate-setting under EU and US Copyright Law

Rate-setting under EU and US Copyright Law

Algorithmic Parody Protection in the European Union: CDSM Directive and DSA Regulation Perspective

Abstract This research aims to evaluate the CDSM Directive and DSA regulation effectiveness in protecting the EU copyright exception for parody, caricature, and pastiche set in Article 5 (3)(k) of the InfoSoc Directive and capture quintessential issues of the regulation that make the conditions for potentially reduced ability to disseminate creative parody content in the online content-sharing service platforms in the EU. The subject of this paper is the complex relationship between algorithmic content recognition tools and creative parody content qualification. Based on EU copyright law doctrinal consensus, a legislative move to introduce liability for copyright-infringing content to online content-sharing service providers induces algorithmic content moderation on digital platforms. The triangular challenge to balance EU copyright and exception protection without disrupting the online content-sharing service leads to algorithmic recognition-based parody recognition solutions.

Is There Still a Policy Agenda for EU Copyright Law?

Almost two decades after the last landmark act of EU copyright harmonization (InfoSoc Directive, 2001/29/EC), and after a number of narrow, targeted interventions on specific topics, the EU legislator has issued another historical directive touching key pillars of copyright law (2019/790/EU, CDSMD). It is still too early to evaluate the impact this act will have on the digital single market of protected works and the balance between conflicting interests at stake. However, commentators have already highlighted its strengths and flaws, underlined challenges and problems still affecting the system, and advanced specific reform proposals and, more generally, EU copyright law that have still remained unaddressed. This revived debate, also triggered by the interplay between EU copyright and the new regulatory interventions on platform regulation and the data economy, stand in stark contrast with the disappearance of copyright from the Union’s legislative agenda, which will likely be the case for some years to come. Building on the current state of the harmonization in the field, this Opinion maintains that a pressing EU copyright policy agenda still exists, and proposes a number of recommendations for future regulatory actions.

Digital exhaustion of the right of distribution in the European Union copyright law

In this article, the author presents the conditions for exhaustion of the distribution right and overviews the main sources regulating exhaustion, from which the main problem related to the recognition of digital exhaustion of the distribution right - the separation of the right of communication to the public and the right of distribution - arises. In the view of the author, transmission of works or objects of related rights over computer networks for permanent use by its users is not fully attributable to distribution, due to international and EU provisions restricting the distribution right to material copies only. Therefore, the author considers that intervention of the legislator is necessary in order to implement the rule of digital exhaustion and to make a clear distinction between the rights of distribution and communication to the public. Other risks associated with the digital exhaustion of the distribution right, such as the “first copy” problem, and the inefficiency of the technical measures to ensure that works (other objects) transmitted over computer networks are not reproduced without the permission of the rightholder, are also analysed in this work. Notwithstanding the mentioned concerns, the author suggests reviewing legal provisions related to digital exhaustion in order to ensure that copyright law better meets actual social relationships and key consumer needs.

Developing Artificial Intelligence-Based Content Creation: Are EU Copyright and Antitrust Law Fit for Purpose?

Artificial intelligence offers promising applications for content production. However, their development faces significant copyright issues because it involves reproduction of protected subject matter and requires datasets so large that obtaining licences from all rightholders is unfeasible. These issues potentially hinder technological development and content production. On the other hand, some AI applications can threaten the interests and incentives of those who create works and subject matter that are protected by related rights. This article examines whether EU copyright and antitrust law are capable of addressing these challenges. It identifies possibilities and obstacles in applying exceptions for text and data mining (TDM) and temporary copying to the development of artificial creativity (AC) applications. The article also examines mechanisms by which EU antitrust law facilitates access to copyright-protected training materials and licences – an important complement to the copyright exceptions. While copyright and antitrust law enable the development of AC in certain situations, their tools are limited to particular types of AI applications, certain categories of subject matter and specific market conditions, and are subject to requirements concerning the development process as well as considerable legal uncertainty. Copyright and antitrust law also remain largely toothless against contractual and technological restraints, while recent EU initiatives dealing with data access also provide little relief in this regard.

Did the Colombian Constitutional Court foresee the conditions for implementing Articles 18 to 23 of the Directive (EU) 2019/790?

... For an article that relates to the implementation of Directive (EU) 2019/790 on copyright in the digital single market (the ‘EU Directive’),1 the title of this piece might, to some, raise a nonsensical question. Hopefully, however, they would concede that this is a useful exercise to demonstrate that the principles supporting one key aspect of the EU Directive have already been identified by a senior court in another jurisdiction. This article seeks to highlight possible parallels between Colombia’s copyright law and constitutional jurisprudence and the newly harmonized regulation of contractual relationships between authors and rightholders in EU copyright law, enshrined in Articles 18 to 23 of the EU Directive. It argues that, because of the commonalities identified, the EU Directive may provide a possible model for reform Colombian copyright law to protect more adequately the interests of authors who are often the weaker party in contracts relating to copyright works.

The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law

The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law