European Union Intellectual Property Office (EUIPO) Releases Study on Generative Artificial Intelligence and Copyright

From the EUIPO Release:

Generative Artificial Intelligence (GenAI) relies on the exploitation of existing content to generate new material, and introduces a new paradigm, where not all content is created by human anymore. This essence of GenAI raises urgent questions about the lawful use of copyright-protected content as input to train GenAI systems, and about the ways we can distinguish between content that is protected by copyright and content that is not.

To tackle these complex issues, the purpose of the EUIPO’s newly released study is to deepen the general understanding of GenAI’s technical functioning, as well as existing and developing solutions underlying the application of EU rules on copyright and Artificial Intelligence. The study offers an in-depth analysis of GenAI developments from the perspective of EU copyright law, covering technical, legal, and economic aspects.

It is based on a research methodology that includes desk research, interviews with experts, and detailed analysis of technical solutions and practices, providing a comprehensive foundation for informed decision-making. The study was conducted in close collaboration with relevant European Commission services.

The EUIPO study centres on three interconnected areas: (1) The use of copyright-protected works as training data for GenAI models, (2) the generation of new content by these systems, and the legal questions this raises, and (3) the wider implications for creators, AI developers, and the copyright ecosystem.

The study explores several key questions, including:

• How GenAI works and its implications on copyright
• The current state of EU law on GenAI, including the Copyright in the Single Market Directive (CDSM) and the EU Artificial Intelligence Act (AI Act)
• How copyright holders can protect their rights in the age of GenAI, including opt-out mechanisms and licensing agreements
• Why transparency and detectability are important in Generative AI
• What are the potential benefits of the emerging market for GenAI training data, and how can it provide revenue streams for creators
• What role could public authorities play in supporting both GenAI development and IP protection
• What are the ongoing legal disputes related to GenAI and IP

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Main findings

• Access to high-quality content is central to the development of GenAI services. The AI training process is complex and uses content as input at different stages. However, as GenAI models are “specialised” for certain functionalities they need access to high quality and up-to date content, which is reflected in emergence of a direct licensing market, with some GenAI developers licensing access and use of high-quality content from copyright holders. The capacity for copyright holders to effectively reserve their rights a pre-requisite for the licensing market to develop.
• No ‘one-size-fits all’ solution for copyright holders to protect their rights has emerged yet. Instead, different approaches and solutions are developing for copyright holders to protect their rights, and for AI developers to respect their regulatory obligations: On the one side, the rights reservation mechanisms for the INPUT phase (related to training AI models), whereby rightsholders can express their opt out from the ‘text and data mining’ (TDM)-exception. On the other side, transparency measures exist for the OUTPUT phase that allow the indication and recognition of AI generated content.
• Public authorities, such as national IP authorities and the EUIPO, may play a role by providing technical support (for copyright holders to reserve their rights, and for AI developers to effectively respect such reservations) as well as non-technical support (e.g., public awareness, forums for technical information sharing, providing information to the public on available solutions, trends and developments).

Read the Complete Release

Direct to Full Text Report (436 pages; PDF)

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