The EU AI Act has been published

Artificial Intelligence (AI) has been a hot topic in recent years. Its development and use continue to grow, in all areas. It's not uncommon to see images created by AI popping up all over the place (this Kat loves generating AI images).

Today saw the publication of the long awaited Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence and amending Regulations (EC) No 300/2008, (EU) No 167/2013, (EU) No 168/2013, (EU) 2018/858, (EU) 2018/1139 and (EU) 2019/2144 and Directives 2014/90/EU, (EU) 2016/797 and (EU) 2020/1828.

While the AI Act is not IP-specific legislation, it will have a substantial impact on it, notably copyright and trade secrets.

AI-generated Kat

Main aim of the Regulation

According to Recital 1 “the purpose of this Regulation is to improve the functioning of the internal market by laying down a uniform legal framework in particular for the development, the placing on the market, the putting into service and the use of artificial intelligence systems (AI systems) in the Union, in accordance with Union values, to promote the uptake of human centric and trustworthy artificial intelligence (AI) while ensuring a high level of protection of health, safety, fundamental rights as enshrined in the Charter of Fundamental Rights of the European Union (the ‘Charter’) (…) to protect against the harmful effects of AI systems in the Union, and to support innovation. This Regulation ensures the free movement, cross-border, of AI-based goods and services, thus preventing Member States from imposing restrictions on the development, marketing and use of AI systems, unless explicitly authorised by this Regulation”.

 
This sprawling regulation comprises 180 recitals and 113 articles. It covers a wide range of areas, from health and safety to CE marking and copyright. It also sets out a framework for suppliers and deployers of AI systems, with a series of obligations to respect.

 

IP-related impact

Recitals 104 to 109 and Article 53 have a direct impact on copyright. These must be read in conjunction with Directive 2019/790, and in particular Article 4(3) thereof, that is: the more general exception or limitation for text and data mining (as opposed to the more specific one found in Article of that Directive).

 
In particular, Recital 105 provides that “General-purpose AI models, in particular large generative AI models, capable of generating text, images, and other content, present unique innovation opportunities but also challenges to artists, authors, and other creators and the way their creative content is created, distributed, used and consumed. The development and training of such models require access to vast amounts of text, images, videos and other data. Text and data mining techniques may be used extensively in this context for the retrieval and analysis of such content, which may be protected by copyright and related rights. Any use of copyright protected content requires the authorisation of the rightsholder concerned unless relevant copyright exceptions and limitations apply. Directive (EU) 2019/790 introduced exceptions and limitations allowing reproductions and extractions of works or other subject matter, for the purpose of text and data mining, under certain conditions. Under these rules, rightsholders may choose to reserve their rights over their works or other subject matter to prevent text and data mining, unless this is done for the purposes of scientific research. Where the rights to opt out has been expressly reserved in an appropriate manner, providers of general-purpose AI models need to obtain an authorisation from rightsholders if they want to carry out text and data mining over such works.”

Among other things, Recital 106 provides that “providers of general-purpose AI models should put in place a policy to comply with Union law on copyright and related rights, in particular to identify and comply with the reservation of rights expressed by rightsholders pursuant to Article 4(3) of Directive (EU) 2019/790. Any provider placing a general-purpose AI model on the Union market should comply with this obligation, regardless of the jurisdiction in which the copyright-relevant acts underpinning the training of those general-purpose AI models take place.”

Recital 107 indicates that “In order to increase transparency on the data that is used in the pre-training and training of general-purpose AI models, including text and data protected by copyright law, it is adequate that providers of such models draw up and make publicly available a sufficiently detailed summary of the content used for training the general-purpose AI model. (…) this summary should be generally comprehensive in its scope instead of technically detailed to facilitate parties with legitimate interests, including copyright holders (…)”

This legislative framework is set out in Article 53 (1). Titled “Obligations for providers of general-purpose AI mode”, it provides that “Providers of general-purpose AI models shall put in place a policy to comply with Union law on copyright and related rights, and in particular to identify and comply with, including through state-of-the-art technologies, a reservation of rights expressed pursuant to Article 4(3) of Directive (EU) 2019/790”. It should be noted that the notion of general AI model is defined in Article 3 (63) of Regulation 2024/1689 in such a way as to encompass learning-based AI models.

Furthermore, providers of general-purpose AI mode are also required to “draw up and make publicly available a sufficiently detailed summary about the content used for training of the general-purpose AI model, according to a template provided by the AI Office.”

The IPKat will closely follow future developments concerning the AI Act and its interplay with IP.