The European Commission’s public consultation on the role of publishers in the copyright value chain: a response by the European Copyright Society

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Elaborating a Human Rights friendly Copyright Framework for Generative AI

This paper analyses the copyright issues related to so-called “generative AI” systems and reviews the arguments currently advanced to change the copyright regime for AI-generated works from a human rights perspective. It argues that because of the applicable human rights framework for copyright but also the anthropocentric approach of human rights the protection of creators and human creativity must be considered the point of reference when assessing future reforms with regard to copyright and generative AI systems. Consequently, the copyrightability of AI-generated outputs should be considered with utmost care and only when AI is used as a technical tool for creators in their creation process- meaning when they serve a human author. A human rights analysis reinforces that copyright should be a tool to protect creativity and creators, not a legal mechanism to secure the amortization of economic investments in AI technology. With regard to the input, the right to train generative AI systems via machine learning technology can be derived from the right to science and culture and freedom of (artistic) expression as AI can lead to useful advancements in science and arts; moreover, it is important for human creators to be able to use outputs produced by generative AI in their creative process. At the same time, it follows from the right to the protection of moral and material interests of the creator that authors must be adequately remunerated for the commercial use of their works unless there is a strong justification legitimizing the use. For this reason, it is proposed that the machine learning process using copyright-protected works to train the AI gives rise to a limitation-based remuneration right to the benefit of human creators. The paper also briefly explores if and when the moral interest of creators deriving from human rights protection could justify that they oppose the use of their work for training purposes of AI systems. The paper concludes that a human rights analysis secures an ethical approach to copyright issues of generative AI so that these systems serve creators and creativity, and not the other way around

The Missing Goal-Scorers in the Artificial Intelligence Team: Of Big Data, the Fundamental Right to Research and the failed Text and Data Mining limitations in the CSDM Directive

This article argues that recent strategies of the European Union in the field of Artificial Intelligence (AI) resemble a football team missing a goal-scorer to win any of the competitions with other jurisdictions having more flexible limitations to copyright, in particular with those allowing robust text and data mining (TDM) activities. It analyses the TDM limitations newly introduced in EU copyright law by the Directive on Copyright in the Digital Single Market to show that these provisions not only fail to take duly into account the right to research grounded in the fundamental right to information, but also will not allow the European Union to provide a competitive environment for the development of AI and data-driven innovations. As a conclusion, the article calls for a prompt revision of the copyright framework for TDM activities at EU and international levels, combined with an implementation of the directive by Member States that would be compliant with the fundamental rights framework of the EU and the objective advanced by European policy makers

Promoting Creativity through Copyright Limitations: Reflections on the Concept of Exclusivity in Copyright Law

Do copyright limitations have the ability to promote creativity and innovation in an effective way? This question may initially sound astonishing because this incentive function is traditionally attributed to the exclusive rights and not to their limitations. However, it should not be forgotten that innovation often builds on existing creations. As a consequence, by depriving the copyright holder of the right to consent to certain acts, one might in turn encourage creative uses. In addition, it is possible for legislatures to draft limitations in order to guarantee that the permitted uses are not for free by providing for a just monetary return for right holders, for example by establishing a workable limitation- based remuneration system. In many European countries, uses legitimated by copyright limitations are often coupled with the payment of remuneration, from which the creators often profit in a considerable manner. Thus, this Article seeks to reflect on the limitations and exceptions to copyright from the perspective of the creators and their interests and, on this occasion, to express some free thoughts concerning the principle of exclusivity in copyright law

Fair Use through Fundamental Rights in Europe: When Freedom of Artistic Expression allows Creative Appropriations and Opens up Statutory Copyright Limitations

This chapter discusses the evolution in jurisprudential understanding of the relationship between copyright and freedom of artistic expression in the European Union. It demonstrates how courts in France and several other EU member states have accepted a “fair use” approach that applies fundamental rights as external limitations to copyright law, in compliance with the case law of the European Court of Human Rights but contrasting with the recent conflicting position of the Court of Justice of the European Union. The chapter first analyses the application of freedom of artistic expression to copyright law on a case-by-case basis and shows that, although long contested, such an approach is now mandated by EU primary law, thus “flexibilizing” significantly the legal framework in this area. It then examines the balancing act between fundamental rights and copyright, with particular attention paid to the weight the judiciary should afford freedom of artistic expression versus copyright law in cases of creative appropriation, in order to comply with the obligations resulting from European, national, and international human rights provisions. Finally, the chapter concludes with a discussion and evaluation of the growing need for legislative reform to render freedom of artistic expression fully compatible with copyright law in the context of creative reuses of protected works

Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?

Copyright was originally intended to serve creators as an engine of free expression, protecting them from the interference of others and from all risk of censorship. To this end, a balance was conceived between exclusive control and freedom in order to enable future creativity. Some uses were kept outside the control of the right owner through limitations to the exclusive right. However, none of the existing systems of limitations in the various jurisdictions was specifically designed to address the creative reuse of copyright protected material in the context of derivative works. On the contrary, when an author in his creative process needs to use the expression of a previous copyrighted work, he will have to get the authorization of the copyright owner of the original work. This situation can be quite cumbersome, as right owners are not always easy to trace. Most of all, it can lead to private censorship, as private entities or individuals have the potential to decide what can and cannot be created and block the dissemination of new works. It might thus be questionable how this situation can be reconciled with either the copyright’s rationale of incentivizing creativity or the obligations imposed on States by international and regionally protected human rights such as freedom of expression and freedom of artistic creation. This Article will assess the different options available for legislators and courts to secure creative uses in the context of derivative works to develop a satisfying legal mechanism de lege ferenda, discussing in particular the possible objections that could result from the international and regional framework for both intellectual property and human rights protection