AI Act, Copyright
Online publication{nokey,
title = {Copyright, the AI Act and extraterritoriality},
author = {Quintais, J.},
url = {https://copyrightblog.kluweriplaw.com/2024/11/28/copyright-the-ai-act-and-extraterritoriality/},
year = {2024},
date = {2024-11-28},
journal = {Kluwer Copyright Blog},
keywords = {AI Act, Copyright},
} ai, CDSM Directive, Copyright, text and data mining
Article{nokey,
title = {The paradox of lawful text and data mining? Some experiences from the research sector and where we (should) go from here},
author = {Szkalej, K.},
url = {https://ssrn.com/abstract=5000116 },
doi = {https://doi.org/10.2139/ssrn.5000116 },
year = {2024},
date = {2024-11-04},
abstract = {Scientific research can be tricky business. This paper critically explores the \'lawful access\' requirement in European copyright law which applies to text and data mining (TDM) carried out for the purpose of scientific research. Whereas TDM is essential for data analysis, artificial intelligence (AI) and innovation, the paper argues that the \'lawful access\' requirement in Article 3 CDSM Directive may actually restrict research by complicating the applicability of the TDM provision or even rendering it inoperable. Although the requirement is intended to ensure that researchers act in good faith before deploying TMD tools for purposes such as machine learning, it forces them to ask for permission to access data, for example by taking out a subscription to a service, and for that reason provides the opportunity for copyright holders to apply all sorts of commercial strategies to set the legal and technological parameters of access and potentially even circumvent the mandatory character of the provision. The paper concludes by drawing on insights from the recent European Commission study \'Improving access to and reuse of research results, publications and data for scientific purposes\' that offer essential perspectives for the future of TDM, and by suggesting a number of paths forward that EU Member States can take already now in order to support a more predictable and reliable legal regime for scientific TDM and potentially code mining to foster innovation.},
keywords = {ai, CDSM Directive, Copyright, text and data mining},
} Copyright
Online publication{nokey,
title = {Opinion of the European Copyright Society on CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II)},
author = {Mezei, P. and Senftleben, M. and Sganga, C.},
url = {https://europeancopyrightsociety.org/wp-content/uploads/2024/11/ecs-opinion-pelham-ii-1.pdf},
year = {2024},
date = {2024-11-06},
journal = {European Copyright Society},
abstract = {In its questions for preliminary ruling, the German Federal Court of Justice asked for clarification as regards the definition of pastiche under EU copyright law; and, in essence, whether and how this concept applies to musical sampling. In the present Opinion, the European Copyright Society takes the view that pastiche is an autonomous concept of EU law. Article 5(3)(k) InfoSoc Directive (ISD) should be read as an overarching provision including three forms of permitted use that share their underlying nature but shall be judged differently. The meaning of pastiche cannot be understood as a mere imitation of an artistic style and it need not entail an explicit interaction with the original work. The presence of humour or mockery is not a necessary requirement for the application of the pastiche exception. Also, the expression resulting from the exercise of the pastiche exception need not itself be an original work. Finally, the intention of the user to create pastiche plays no role in the review of the legality of any given use. At the same time, legitimate forms of pastiche need to have their own features that are distinguishable from the copyrighted expression in pre-existing works used as source materials. Overall the use of the pastiche exception for purposes of musical sampling, as in the underlying Metall auf Metall case, complies with all the three steps of Article 5(5) ISD.},
keywords = {Copyright},
} Copyright
Online publication{nokey,
title = {Opinion of the European Copyright Society on the CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II)},
author = {Mezei, P. and Senftleben, M. and Sganga, C. and Geiger, C.},
url = {https://copyrightblog.kluweriplaw.com/2024/11/07/opinion-of-the-european-copyright-society-on-the-cg-and-yn-v-pelham-gmbh-and-others-case-c-590-23-pelham-ii/},
year = {2024},
date = {2024-11-07},
journal = {Kluwer Copyright Blog},
keywords = {Copyright},
} Copyright
Online publication{nokey,
title = {Everything is harmonized. The CJEU’s decision in Kwantum v. Vitra},
author = {Hugenholtz, P.},
url = {https://copyrightblog.kluweriplaw.com/2024/11/06/everything-is-harmonized-the-cjeus-decision-in-kwantum-v-vitra/},
year = {2024},
date = {2024-11-06},
journal = {Kluwer Copyright Blog},
keywords = {Copyright},
} Artificial intelligence, artistic expression, Copyright
Article{nokey,
title = {Copyright and the Expression Engine: Idea and Expression in AI-Assisted Creations},
author = {Hugenholtz, P.},
url = {https://www.ivir.nl/nl/publications/copyright-and-the-expression-engine-idea-and-expression-in-ai-assisted-creations/chicagokentlawreview2024/},
year = {2024},
date = {2024-11-05},
journal = {Chicago-Kent Law Review (forthcoming)},
abstract = {This essay explores AI-assisted content creation in light of EU and U.S. copyright law. The essay revisits a 2020 study commissioned by the European Commission, which was written before the surge of generative AI. Drawing from traditional legal doctrines, such as the idea/expression dichotomy and its equivalents in Europe, the author argues that iterative prompting may lead to copyright protection of GenAI-assisted output. The paper critiques recent U.S. Copyright Office guidelines that severely restrict registration of works created with the aid of GenAI. Human input, particularly in the conceptual and redaction phases, provides sufficient creative control to justify copyright protection of many AI-assisted works. With many of the expressive features being machine-generated, the scope of copyright protection of such works should, however, remain fairly narrow.},
keywords = {Artificial intelligence, artistic expression, Copyright},
} AI Act, Content moderation, Copyright, DSA, Generative AI, text and data mining, Transparency
Working paper{nokey,
title = {Generative AI, Copyright and the AI Act (v.2)},
author = {Quintais, J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4912701},
year = {2024},
date = {2024-11-01},
abstract = {Published 1 November 2024. This is a revised and extended version of a paper initially published in August 2024.
This paper examines the copyright-relevant rules of the recently published Artificial Intelligence (AI) Act for the EU copyright acquis. The aim of the paper is to provide a critical overview of the relationship between the AI Act and EU copyright law, while highlighting potential gray areas and blind spots for legal interpretation and future policy-making. The paper proceeds as follows. After a short introduction, Section 2 outlines the basic copyright issues of generative AI and the relevant copyright acquis rules that interface with the AI Act. It mentions potential copyright issues with the input or training stage, the model, and outputs. The AI Act rules are mostly relevant for the training of AI models, and the Regulation primarily interfaces with the text and data mining (TDM) exceptions in Articles 3 and 4 of the Copyright in the Digital Single Market Directive (CDSMD). Section 3 then briefly explains the AI Act’s structure and core definitions as they pertain to copyright law. Section 4 is the heart of the paper. It covers in some detail the interface between the AI Act and EU copyright law, namely: the clarification that TDM is involved in training AI models (4.1); the outline of the key copyright obligations in the AI Act (4.2); the obligation to put in place policies to respect copyright law, especially regarding TDM opt-outs (4.3); the projected extraterritorial effect of such obligations (4.4); the transparency obligations (4.5); how the AI Act envisions compliance with such obligations (4.6); and potential enforcement and remedies (4.7). Section 5 offers some concluding remarks, focusing on the inadequacy of the current regime to address one of its main concerns: the fair remuneration of authors and performers.},
keywords = {AI Act, Content moderation, Copyright, DSA, Generative AI, text and data mining, Transparency},
} Copyright, Geoblocking, right of communication to the public
Online publication{nokey,
title = {Geoblocking measures sufficient to prevent a “communication to the public”? The CJEU gets a second chance},
author = {Toepoel, I. and Valk, E.G.},
url = {https://copyrightblog.kluweriplaw.com/2024/10/31/geoblocking-measures-sufficient-to-prevent-a-communication-to-the-public-the-cjeu-gets-a-second-chance/},
year = {2024},
date = {2024-10-31},
journal = {Kluwer Copyright Blog},
keywords = {Copyright, Geoblocking, right of communication to the public},
} Copyright, open access, Secondary Publication Rights (SPR)
Online publication{nokey,
title = {ALLEA Statement in Support of Secondary Publication Rights for Scholarly Articles},
author = {Hugenholtz, P.},
url = {https://copyrightblog.kluweriplaw.com/2024/10/23/allea-statement-in-support-of-secondary-publication-rights-for-scholarly-articles/},
year = {2024},
date = {2024-10-23},
journal = {Kluwer Copyright Blog},
abstract = {The European Federation of Academies of Sciences and Humanities (ALLEA) has for many years supported the move away from proprietary models of scholarly publishing towards Open Access (OA). ALLEA, therefore, welcomes the recognition in the laws of an increasing number of European countries of so-called ‘Secondary Publication Rights’ (SPRs) that allow publicly funded researchers to make their published articles available on institutional websites and non-profit online repositories, regardless of persistent contractual practices that require authors to transfer their copyrights to commercial publishers. SPRs are proving to be strong enablers of OA to publicly funded research output, without the excessive costs associated with Gold OA models. ALLEA therefore calls upon the European Union (EU) to initiate harmonising legislation that would accord SPRs to scientific researchers in all 27 Member States of the EU.},
keywords = {Copyright, open access, Secondary Publication Rights (SPR)},
} Copyright, information law, Kluwer Information Law Series
Online publication{nokey,
title = {Old Volumes Never Die. IViR and Kluwer Launch Archive of Information Law Series Back Issues},
author = {Hugenholtz, P.},
url = {https://copyrightblog.kluweriplaw.com/2024/10/10/old-volumes-never-die-ivir-and-kluwer-launch-archive-of-information-law-series-back-issues/},
year = {2024},
date = {2024-10-10},
journal = {Kluwer Copyright Blog},
keywords = {Copyright, information law, Kluwer Information Law Series},
}