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/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},
} AI Act, case law, GDPR, Privacy
Article{nokey,
title = {The Right to an Explanation in Practice: Insights from Case Law for the GDPR and the AI Act},
author = {Metikoš, L. and Ausloos, J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4996173},
year = {2024},
date = {2024-10-24},
journal = {Law, Innovation, and Technology (forthcoming)},
abstract = {[This is a pre-publication draft paper, forthcoming in Law, Innovation, and Technology 17.2, October 2025. The final version is subject to further revisions.]
The right to an explanation under the GDPR has been much discussed in legal-doctrinal scholarship. This paper expands upon this academic discourse, by providing insights into what questions the application of the right to an explanation has raised in legal practice. By looking at cases brought before various judicial bodies and data protection authorities across the European Union, we discuss questions regarding the scope, content, and balancing exercise of the right to an explanation. We argue, moreover, that these questions also raise important interpretative issues regarding the right to an explanation under the AI Act. Similar to the GDPR, the AI Act\'s right to an explanation leaves many legal questions unanswered. Therefore, the insights from the already established case law under the GDPR, can help us to understand better how the AI Act\'s right to an explanation should be understood in practice.},
keywords = {AI Act, case law, GDPR, Privacy},
} 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)},
} Artificial intelligence, Fundamental rights
Chapter{nokey,
title = {De Grondwet en Artifciële Intelligentie},
author = {Dommering, E.},
url = {https://open.overheid.nl/documenten/9172451e-8e06-43a7-aed5-12f9a5233c3f/file},
year = {2024},
date = {2024-08-01},
keywords = {Artificial intelligence, Fundamental rights},
} 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},
} article{nokey,
title = {Written evidence to the UK House of Lords’ International Agreement Committee inquiry into Data and Digital Trade},
author = {Irion, K.},
url = {https://committees.parliament.uk/work/8432/data-and-digital-trade/publications/written-evidence/},
year = {},
date = {DATE ERROR: pub_date = },
abstract = {Written evidence by Emily Jones, Philippa Collins, Henning Grosse Ruse-Khan, Albert Sanchez-Graells, Kristina Irion, Cosmina Dorobantu, Burcu Kilic , and Daria Onitiu to the House of Lords’ International Agreement Committee inquiry into Data and Digital Trade. This written evidence addresses the question:
How do you think the government should balance issues such as the right to regulate to protect data privacy or to access source code, with commitments in treaties protecting free flows of data or intellectual property of software developers? What has its approach been to date and how do you think it should approach these issues in future?
Source code provisions in concluded UK Free Trade Agreements (FTAs) and digital economy agreements do not take sufficient account of the need of governments to introduce a range of measures that will regulate algorithmic and artificial intelligence (AI) systems, mitigate risks associated with the use of AI systems and ensure their developers and providers are held accountable for any harms that arise.},
} Article{nokey,
title = {The Unproductive “Overconstitutionalization” of EU Copyright and Trademark Law – Fundamental Rights Rhetoric and Reality in CJEU Jurisprudence},
author = {Senftleben, M.},
url = {https://link.springer.com/article/10.1007/s40319-024-01527-8},
year = {2024},
date = {2024-10-08},
journal = {IIC},
volume = {55},
issue = {9},
pages = {1471-1514},
abstract = {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.},
}