senftleben (2023) Flashcards
Directive on Copyright in Digital Single Market (CDSMD)
contains a broad exception for text and data mining (TDM). under that rule, anyone can make copies of works or databases for the sake of TDM and retain them as long as necessary for the AI training process. the EU legislature confirms that TDM and related AI training processes are relevant to copyright. this EU copyright law already provides a basis for linking remuneration to the AI training process.
three-step test
TDM exception shall only be applied in certain cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder Generative AI and Author Remuneration.
opt-out rules
offer an instrument with relatively broad copyright exceptions. to ensure compliance with the three-step test, the potential adverse effect on normal exploitation of a work is thus minimised. the use of this option in practice will show whether right holders really see copyright exception as a risk factor.
CDSMD Art. 4
contains an opt-out possibility where right holders who fear the usurpation of the market for human creation can prevent the AI system from using their works as training resources. this erases the risk of conflict with normal exploitation or undermining legitimate right holders interests.
AI Levy System
providers of generative AI systems would be obliged to pay remuneration for producing literary and artistic content. the literary and artistic output of generative AI systems serves as a reference point for a legal obligation to pay remuneration.
substitution test
assessment whether an AI system is capable of serving as a substitute for human literary and artistic productions. this can be used to confirm a disruptive effect and require payment of a levy. it could also help draw the line between the use of AI to replace human creativity and its use to support human creativity. then, lawmakers can clarify that no levy payment is needed when human artists use AI systems as tools to shape their own literary and artistic expression.
lump-sum levy approach
the system would serve the overarching purpose of creating a new revenue stream to support the work of human authors. revenue from remuneration would be channelled into collecting societies, who would use the money to improve working and living conditions of authors.
domaine public payant
Adolf Dietz proposed a new right in copyright law in which a right holder (the community of authors) was entitled as a collective. copyright can be used as a legal tool to introduce a remuneration right as a means to redress the community of authors. so, a natural or legal person or body would interfere and control the market and claim participation right. this body would then distribute the incoming money according to statutory purposes and rules.
