EU Policy Questionnaire on the Relationship Between Generative Artificial Intelligence and Copyright and Related Rights

Main Findings

The Council of the European Union, under the Hungarian Presidency, distributed a policy questionnaire to Member States to gather views on the relationship between generative AI and copyright. The revised summary, issued on December 20, 2024, incorporates feedback from EU Member States and highlights several key areas of concern and consensus.

Current Legal Framework and Practical Matters

Most Member States believe that the existing EU legal framework is generally sufficient to address issues arising from AI and copyright. However, there are practical matters where more clarity and certainty are needed, particularly regarding the applicability of the TDM exception and its opt-out mechanism introduced by the Directive (EU) 2019/790 (DSM Directive). Many Member States expressed concerns about the practical use of the opt-out system and the interpretation of "machine readability."

1. Copyright Protection of AI-Generated Content. There is a consensus among EU Member States that purely AI-generated works should not be eligible for copyright protection, as only a natural person can be considered an author under the Berne Convention. However, AI-assisted works can obtain copyright protection if they meet the general requirements. The differentiation between AI-generated and AI-assisted works is crucial. 

2. Transparency and Labelling Obligations. The majority of EU Member States advocate for a "wait and see" approach regarding new transparency obligations linked to AI-generated content, preferring to analyze the implementation of the AI Act first. There is a division on whether labelling or watermarking obligations should apply uniformly or vary by type of work. Some EU Member States support additional transparency measures, while others oppose further obligations at this stage. 

3. Licensing and Remuneration. Several EU Member States emphasized the importance of collective management organizations ("CMOs") in facilitating the conclusion of licenses between right holders and AI developers. There are diverging views on the potential setting up of a remuneration scheme for generative AI activities, with some EU Member States supporting it and others opposing it. The need to ensure that small EU AI providers have access to quality data for training their models was also highlighted. 

4. Liability for Copyright Infringements. There is a consensus that introducing a specific liability regime for copyright infringement in the context of generative AI is unnecessary at this stage. The existing general rules on infringement are deemed sufficient. However, some EU Member States suggested that the negotiations of the AI Liability Directive proposal could provide an appropriate framework to discuss liability questions related to copyright infringement.

5.  International Discussions. EU Member States almost universally agree on the need for international discussions on AI and copyright, with the World Intellectual Property Organization ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR") being the preferred platform. There is a general view that international normative legislation is not appropriate at this stage.

Summary

The revised summary of the policy questionnaire on the relationship between generative AI and copyright underscores the need for clarity and practical solutions within the existing legal framework. While there is no immediate call for new legislation, the document highlights areas where further analysis and potential adjustments may be necessary. Stakeholders should stay informed about developments in this area and prepare for possible changes in licensing, transparency, and liability obligations.