Generative artificial intelligence (“GenAI”) challenges EU copyright law, from the AI training to the protectability and liability risks of its output. The EU’s forthcoming AI Act takes first steps towards AI-specific regulation with its provider obligations on training data transparency and copyright policy.

Text and data mining (TDM) exception for AI training: GenAI applications have been trained with millions of pieces of copyrighted content scraped from the internet without explicit consent from the rightsholders. In the EU, reproductions made in the course of such training are permitted by the TDM exception of the 2019 EU Copyright Directive, unless rightsholders express machine-readable opt-outs. Not yet harmonized standards for such technical opt-outs and the issue that AI models currently cannot retroactively “forget” individual training content are practical challenges for which crucial developments should be monitored in 2024.

Training data transparency: The EU AI Act will include a training data transparency obligation for providers of general-purpose AI (GPAI) models. The transparency obligation will no longer be limited to copyrighted training data, as initially proposed by the EU Parliament. It now requires providing general information on the datasets and databases used with further guidance to be provided by the future EU AI Office.

AI output to be assessed under general copyright law: The EU AI Act will require GPAI model providers to put in place a policy to respect existing EU copyright law, which applies to the entire AI cycle from the input level to the output level. Based on the existing copyright framework, this implies that copyrighted works that have been used for training on the input level must not be recognizable on the output level, unless copyright exemptions apply, or consent of the copyright owner has been given. The recognizable use on the output level is not covered by the TDM exception. Whether there can be copyright protection of the actual output will not be regulated by the AI Act; it will be left to general copyright principles.

In order to act in a safe legal copyright environment, all interest groups should seek to develop joint solutions. Stay tuned!

Susan Bischoff contributed to authoring this blog post.

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