A saviour or a dead end? Reservation of rights in the age of generative AI

Abstract

In 2019, the European Union (EU) introduced its Copyright in the Digital Single Market (CDSM) Directive. Its Articles 3 and 4 were hailed to allow text- and data-mining (TDM) for research and business purposes. With the public launch of numerous generative artificial intelligence (GenAI) applications, e.g. ChatGPT, Stable Diffusion, Runway, GitHub's Copilot and the like, these legislative norms started to live their own life – a life that was not initially coded into them. The TDM exceptions are generally used as a reference for permissionless activities in the GenAI as well as the copyright community. This is not without its own tolls, however. Various conceptual elements of the TDM exceptions remained unclear, various core concepts of Article 3 and 4 are not fully applicable in the GenAI arcade, and they are not uniformly implemented by the EU Member States. One of those conceptual cornerstones of the business TDM exception is the rightholders’ freedom to reserve their rights over TDM, or, as it is more commonly referred to, they are allowed to opt-out their contents from the TDM activities of businesses. How this rights reservation shall work is not yet settled. Open questions remain as regards the practicalities of the lawful access to training data and the computer readable form of reservations; the scope (general v. specific) and the timing (ex ante v. ex post) of opting out; as well as the person entitled and obliged to deploy such reservations (namely, shall reservations be expressed by the rightholders or can GenAI developers control opting out by their own procedures?). Finally: can (and should) rights reservation slow down the massive use of training data for machine learning purposes? The above open questions and the growing number of opt-out models necessitate us to guess whether the CDSM Directive shall already be (re)calibrated to effectively apply for GenAI applications.

Keywords: generative AI, European copyright, CDSM Directive, text- and data-mining, rights reservation

JEL Classification: L00, K10, K11, K19, K33, K39, O30, O33, O34