On Friday 20 February, Commissioner Henna Virkkunen responded to a written question on the respect of EU based opt-outs by non-EU Generative AI developers that deploy their models within the EU market. For the Commission, the EU legislation is clear. AI providers need to respect rights reservations made in accordance with article 4 of the CDSM directive and this applies regardless of the jurisdiction in which the copyright-relevant acts underpinning the training of those GPAI models take place.
The clarification comes in response to a written question tabled by MEPs Emma Rafowicz, Laurence Farreng (Renew), Sabine Verheyen (PPE), Bogdan Andrzej Zdrojewski (PPE), Hannes Heide (S&D), Sandro Ruotolo (S&D) and David Cormand (Verts/ALE). Taking France as an example of a country where all collective management organisations (CMOs) representing performers and authors in the music sector have made use of the rights reservation possibility under article 4 of the CDSM (also know as the opt-out), they asked whether services such as UDIO and SUNO could be offered to EU citizens.
The question arises after the recent series of legal proceedings, settlements, and agreements between these services and the US divisions of the three major labels, Sony, Warner, and Universal. The deals drew fierce criticism from musicians who felt unrepresented in these agreements. Not only was there no transparency on the amounts received, nor clarity on how (or whether) the money paid by SUNO and UDIO would be shared with the recording artists, musicians were particularly upset that their explicit choice to reserve their rights was not taken into account.
It is especially the latter where musicians can count on the Commission’s clear support. In no uncertain terms Virkkunen states that when collective management organisations have appropriately exercised the rights reservation in accordance with the criteria established in Article 4(3) of the CDSM directive, “TDM processing would henceforth require prior authorisation from the concerned rightsholders, including when it is used for the training of AI models.”
In addition, she adds that “This obligation applies regardless of the jurisdiction in which the copyright-relevant acts underpinning the training of those GPAI models take place.” In doing so, she makes it undeniably clear that the EU copyright rules do indeed have an international effect and apply to anyone who wants to offer products or services within the EU. The Commission thus endorses the position prepared by the JURI Committee in the so-called Voss Report, which will be submitted to the Plenary next month.
The answer comes at a timely moment also with regard to the assessment of the 2019 CDSM Directive currently being prepared by the Commission, which will specifically examine the effectiveness of the highly contested Article 4.
The demand is no longer limited to France, as authors and performers in more and more countries are reserving their rights through their CMOs. It is also no longer limited to the music sector, as authors and performers in other sectors are also making themselves heard. For example, last week, British actors announced their decision to only allow AI training with explicit consent.
The strong statement in defense of our European rights holders, however, does not offer a solution to an ongoing problem, the problem of inaccessible protocols. Individual authors and performers have the right to not authorise the use of their work for AI purposes by means of a rights reservation. But they face a very practical impracticality. Once their performance has been incorporated in a phonogram or videogram, they have no control of whether any metadata or other means of identification will be attached. This problem is not solved by collectively announcing a rights reservation via a CMO.
In her response, Virkkunen refers to the current Code of Practice on GPAI and the Commission’s recent initiatives into identifying opt-out protocols that can be considered as state-of-the-art, technically implementable, and widely adopted by rightsholders across different cultural and creative sectors. The Commission’s further work on this matter should therefore focus on how collectively expressed rights reservations are better respected by producers and distributors who control the assets and locations through which the work of our creatives is accessible.
The full question and answer can be consulted on the EP website.
