The EU prepares a review of copyright after Spain's offensive for generative AI

Brussels is taking the first steps towards revising the community regulations affecting copyright in the digital single market. The next link in the European Executive's plan now involves gathering all information relating to specific measures that can serve to modernize the European legislative framework regarding licensing and the promotion of a "fairer" market for rights holders, creators, and the cultural industry as a whole.

The European Commission's decision comes just a few days after the Spanish delegation, led by the Minister of Culture, Ernest Urtasun, requested during a meeting of the Twenty-Seven that the focus of new community actions in this area be placed on the protection of intellectual property in the context of the development of generative Artificial Intelligence. What the Spanish government was proposing was, in essence, to formally open the conversation about the need to undertake an update of current regulations related to copyright and new models for exploiting digital content.

"We consider it appropriate to draw attention to the need to undertake an exhaustive evaluation of the EU's legislative framework on copyright, taking into account its complexity," stated the document promoted by Spain and also supported by Portugal, Slovenia, Estonia, Germany, Slovakia, and Greece. The text defended the need to adapt European regulatory tools to a technological ecosystem profoundly altered by the rise of generative systems capable of producing texts, images, videos, or musical pieces from large volumes of data extracted from the internet.

Following "the rapid technological and market developments" that are reportedly reshaping both the creative economy and the European digital landscape, the Commission now wants to analyze stakeholders' opinions on the challenges posed by generative AI for licensing and the effective respect of intellectual property rights. Furthermore, Brussels intends to use this review to address other issues related to the fight against online piracy of live events, as well as the remuneration of performing artists and producers for recorded music played in the EU. The EU investigation will also extend to access to works and their reuse for scientific and research purposes.

The concern of Member States

In this regard, the Spanish position expressly involved requesting a study on the impact that Artificial Intelligence could have on cultural and creative sectors, with the intention of initiating discussions among Member States as soon as possible on those measures "that should be considered and carried out at our Union's level." In parallel to the discussions held within the Council of the European Union, Brussels intends to adopt a political decision in the first quarter of next year, which would accelerate the EU regulatory timeline.

Although, at first, the call is aimed at exploring an update of the 2019 directive on copyright in the digital single market, the European Commission does not rule out a possible specific legislative initiative on copyright and Artificial Intelligence. In Brussels, they acknowledge that the pace of technological evolution has surpassed some of the forecasts considered when the current regulatory framework was approved.

Urtasun's team considers that current legislation is insufficient to address the licensing of copyright-protected material intended for the training of generative AI systems. This stance also coincides with that of the European Parliament, which even approved a resolution expressly stating the need to develop a new additional framework to clarify this issue, as well as specific mechanisms to address possible infringements arising from current intellectual property regulations.

For this reason, the document that Spain and its partners brought to the Council table proposed strengthening the effective cooperation between generative AI tool providers, creators, and other rights holders. The underlying idea would be to develop a functional licensing market “that restores the bargaining power of rights holders and offers viable protection solutions”.

Fear of economic and democratic impact

Beyond the risk related to the disappearance of the human perspective in certain cultural processes, Moncloa fears that these issues may end up jeopardizing the very economic viability of the European cultural sector. In fact, the text to which Demócrata had access and which reflected this concern warned of a possible “existential risk” for European society and democracy, to the extent that these practices can contribute to blurring “the lines between truth and falsehood” or to “altering the perception of discourses and their authors while modifying cognitive faculties”.

In Brussels, Spanish representatives are working on a strategy whereby the European Union will not limit itself solely to supervising the use of Artificial Intelligence, but will also look towards the development of economic compensation mechanisms for rights holders affected by the training and use of these generative systems. The intention is to explore formulas that allow for fair remuneration for authors whose content is used to feed algorithmic models.

While it is true that, at the time, the EU directive was conceived with the aim of harmonizing copyright within the digital single market, establishing rules that pursued a balance between the interests of creators, cultural institutions, and users in a constantly transforming technological environment, the rise of generative AI has substantially altered the landscape. Among the key points, the directive introduced mandatory exceptions to facilitate text and data mining, digital education, and the preservation of cultural heritage. Similarly, it aimed to improve the position of authors through fairer remuneration and greater transparency in the exploitation of their works.

However, the legislative text did not include an explicit reference to the new Artificial Intelligence services that have emerged in the cultural and creative landscape in recent months. The regulation focused mainly on the regulation of text and data mining, i.e., the fundamental technical process by which AI models are trained. Precisely for this reason, Urtasun urged European co-legislators to concentrate their efforts on three specific issues: “the limit of text and data mining for training AI models for commercial purposes; the legal certainty of intellectual property rights involved in training and generating content by AI; and transparency regarding the content used for AI training”.

Behind this political and regulatory offensive lies a growing concern in European institutions: the possibility that the European Union may lag behind other technological powers in defining regulatory standards for Artificial Intelligence and intellectual property. Brussels believes that the challenge is not only to protect European creators but also to ensure the sustainability of a cultural ecosystem that represents one of the continent's strategic economic sectors.

The review of copyright regulations could thus become one of the major regulatory debates of the next European political cycle. Especially at a time when Community institutions are trying to balance the promotion of technological innovation with the protection of fundamental rights, creativity, and European cultural competitiveness.