Generative AI, Copyright and the AI Act

Generative AI is one of the hot topics in copyright law today. In the EU, a crucial legal issue is whether using in-copyright works to train generative AI models is copyright infringement or falls under existing text and data mining (TDM) exceptions in the Copyright in Digital Single Market (CDSM) Directive. In particular, Article 4 CDSM Directive contains a so-called “commercial” TDM exception, which provides an “opt-out” mechanism for rights holders. This opt-out can be exercised for instance via technological tools but relies significantly on the public availability of training datasets. This has led to increasing calls for transparency requirements. In response to these calls, the European Parliament is considering adding to its compromise version of the AI Act two specific obligations with copyright implications on providers of generative AI models: on (1) transparency and disclosure; and (2) on safeguards for AI-generated content moderation. There is room for improvement on both. 

As currently worded, the transparency obligation to “document and make publicly available a summary of the use of training data protected under copyright law” is impossible to comply with. As such, it is necessary to reconsider this provision in light of the intended policy aim, including focusing on access to datasets, incentivizing cooperation with rights holders, and possibly standardization of opt-outs.  The safeguards provision should learn from recent policy discussions on permissible filtering of copyrighted material and clarify the need for measures deployed by providers of generative AI to ensure the protection of transformative uses based on freedom of expression.