Legal Aspects

THIS IS A TEMPORARY DRAFT FOR DISCUSSION Last updated 2024-06-17

It is still under legal dispute whether training AI models is considered fair use under US Law.

For uses in other countries and regions, different rules apply, this includes the European Union, Japan, Singapore, and Israel.

Under European Union Law, Text and Data Mining (TDM) is regulated by Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (DSM Directive), Article 4, setting the standard for the relevant, transforming exceptions or limitations under national laws in this region:

In the absence of an express reservation of reproductions and extractions of lawfully accessible works and other subject matter (opt-out), the default condition permits Text and Data Mining (TDM). It's important to note that an opt-out declaration is only possible for acts of TDM not subject to other exceptions and limitations, such as commercial reproductive uses. Uses for scientific research purposes are subject to a mandatory exception for TDM, no opt-out is possible. The same applies for temporary acts of reproduction.

Implementing a binding default opt-in system, where AI providers using TDM must consistently seek permission to use copyright protected works would require a revision of the DSM Directive, Article 4 by the lawmakers. Such a revision is currently unlikely.

Options

Option 1: Opt-out Declaration

When we speak of a "machine-readable opt-out", we mean an explicit reservation by the rightsholder that reproductions and extractions of lawfully accessible works and other protected subject matter are not permitted for the purposes of TDM for the purpose of training models and applications of generative AI. An opt-out is not possible for use for scientific research purposes.

Option 2: Opt-out Revocation

On the other hand, an “opt-out Revocation” indicates that the rightsholder has made a declaration that should be interpreted in a way that no opt-out applies (anymore). While one might argue that such a declaration is redundant because permission is the default assumption, there are scenarios where the rightsholder may have initially expressed a machine-readable reservation but subsequently changed their stance.