Today, the JURI Committee approved an amended version of its own initiative report on Copyright and GenAI – Opportunities and Challenges, led by MEP Axel Voss. Performers and their collective management organisations throughout Europe welcome the increased political support to instruct the Commission to find a better working environment for the human creators who face increasing competition from Generative AI content providers. Nevertheless, while softening the tone of certain positions in the original draft will increase the chances of approval by the plenary in March, the question remains whether this will result in an effective solution for the creative sector.
Compared to its original draft, the amended version of the Voss report shows that the many meetings held between the rapporteurs and different stakeholders have led to a better understanding of both the functioning of the copyright sector and the technicalities of the AI industry. The improved and therefore less contestable description of the context in which the recommendations should be interpreted contributes to the credibility of the entire document.
One thing is clear. The Parliament is not accepting of the way performers and other rightsholders are confronted with the continued unworkability of the so-called TDM exception. Although there is no longer an explicit reference to the article, it is clear that it is covered when the report “Notes the ambiguities thus far in the application of the CDSM in the context of Gen AI training and recommends the swift clarification on its application and implementation.” The solution is however not in working towards the listing of possible tools by the EUIPO (whereas N), as such would increase the risk of further lock-in. In addition, the lack of accessible protocols for performers and authors to have their personal choice recognised and respected by AI crawlers and those who distribute their work online requires the urgent attention of the Commission.
In contrast to the strong message to respect rights reservations, on what to do once an opt-out is respected, the report stays vague. It makes it clear that “existing copyright law is insufficient to address the challenge of licensing copyrighted material for Generative AI” and “calls for an additional legal framework to clarify licensing rules for Generative AI and to address potential infringements of existing copyright law” (Par.7).
If recent news on deals struck between AI companies and rightsholders have proven anything, it is that it has become a game for moguls. It is therefore disappointing, that on the one hand the report calls for an additional legal framework to restore the bargaining power of rightsholders (Par.7), but on the other hand “Calls on the Commission to facilitate, through the consultation of collective management societies, the establishment of voluntary collective licensing agreements per sector” (Par.8a). When confronted with global big tech and media companies, voluntary collective licensing will not restore the bargaining power of any individual performer. This is acknowledged insofar as the press and news media sector is concerned, for whom a new paragraph 7a recommends a guaranteed remuneration by promoting a presumption of collective management. A similar solution for performers is missing from the text.
Without such solutions, it will remain unclear how the Parliament aims to make effective the appropriate and proportionate remuneration the report refers to on multiple occasions. It is therefore regrettable that the first recommendation does not include an explicit reference to such fair remuneration when connecting the report to the review of the CDSM Directive, which has in the meantime already started.
Performers do support the change of direction in no longer requesting the introduction of a flat-rate payment as a transitional solution, but instead to recognise the widespread violation of copyright rules by Gen AI providers (Recital Ea), to instruct the Commission to seek “an immediate fair and proportionate remuneration for past uses of copyright-protected works” (Par.4a) and to emphasize that such must be obtained “through negotiations in good faith between rightsholders or their representatives and AI providers.”
Performers also support the strengthened position taken on transparency. The report makes a clear call for the introduction of a rebuttable presumption of use where transparency obligations have not been fully complied with (Par.11). Nonetheless, AEPO-ARTIS repeats the necessity of integrating such presumption into a two-tier transparency obligation in which a limited amount of registered representative rightsholders receive an additional enforceable right to full disclosure of the relevant data that was used for the training of GenAI models.
Further, we welcome the additional attention given to the necessity of introducing extra protection against deep fakes and the imitation of the personal characteristics of our performers (Par.13f) and stressing the need to clearly label purely AI-generated content in order to monitor the implementation of the transparency obligations. These obligations must take effect without delay. Just as rightsholders were denied a postponement of the TDM-exception despite the still existing lack of workable standards, a lack of labeling standards should not lead to a postponement of the obligation for AI developers to disclose their synthetic output.
We would like to thank MEP Axel Voss and the shadowrapporteurs for the enormous work invested in obtaining the outcome and especially their pro-active collaboration with all stakeholders as part of the process.
AEPO-ARTIS encourages all MEPs to adopt the report at the plenary in March and hopes it will result in a clear working plan of the Commission that has transparency and fair remuneration as key pilars.
