From the Press Release: Advocate General Szpunar: The EU Court [of Justice] should find that the retrieval and reuse, in real time, of online press publications by AI chatbots in order to generate answers to user queries may, in certain circumstances, infringe the rights of press publishers. This view will be considered by the EU Court of Justice as it hears this case.
- In today’s opinion, Advocate General Szpunar advises the Court, on the one hand, to declare inadmissible the two questions concerning LLM training. In its view, since there is no evidence that Like Company’s articles have been used to train the Gemini LLMs, and since the training of an LLM is not a form of ‘online use’ of press publications, these questions are hypothetical. However, for the sake of completeness, he suggests to the Court that the use of works and other subject matter protected under copyright and the related right to train an LLM is, as a rule, freely permitted under the text and data mining exception.
- On the other hand, Advocate General Szpunar advises the Court to focus on the questions concerning the answers provided by the chatbot, as these are relevant in the main proceedings. In that respect, he suggests that, when an LLM- driven chatbot retrieves a publication from a press publisher’s website, reuses that publication to generate an answer, and provides that answer to the user, the press publisher’s right may be infringed in certain circumstances.
- On this point, the Advocate General stresses that the press publisher’s right does not protect the mere facts reported in press publications, but only the specific form of expression of those publications. Indeed, its aim is to protect the investment that goes into making such a publication, not to give publishers a monopoly over the news itself.
- Accordingly, in his view, whether such use of press publications by an LLM-driven chatbot falls under the publisher’s right of reproduction depends on two factors: [i] first, whether that chatbot accessed the press publication at issue unlawfully, in particular by circumventing effective technical measures (such as a paywall) designed to restrict access to, or web-scraping of, that publication; and,[ii] secondly, whether the answer provided to the user merely reports facts contained in the original publication or, on the contrary, reuses the form of expression of that publication in a recognisable manner, to such an extent that the user, by reading that answer, is entirely dispensed from accessing the original publication. The right of making available to the public of the press publisher is, as a rule, infringed where the form of expression of the press publication at issue is systematically recognisable, to the extent described above, in the answers provided by the chatbot to related user queries.
- Finally, the provider of the online chatbot is liable for such potential acts of use of press publications where they are inherent to the business model of that provider or the latter has failed to put in place appropriate measures in order to counter those acts credibly and effectively.
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