EU’s AI Act doesn’t do enough to protect artists’ copyright, creative groups say

As the European Artificial Intelligence Act (AI Act)comes into force, groups representing artists say there are still many loopholes that need to be fixed for them to thrive in a creative world increasingly dominated by AI. 

The AI Act, celebrated for being the first comprehensive legislation to regulate AI globally, is riddled with problems, these organisations say. 

Groups like the European Composer and Songwriter Alliance (ECSA) and the European Grouping of Societies of Authors and Composers (GESAC) argue that it fails to protect creators whose works are used to train generative AI models.

Without a clear way to opt out or get paid when tech companies use their music, books, movies, and other art to train their AI models, experts say that their work is continually at risk. 

“The work of our members should not be used without transparency, consent, and remuneration, and we see that the implementation of the AI Act does not give us,” Marc du Moulin, ECSA’s secretary general, told Euronews Next.

‘Putting the cart before the horse’

The purpose of the AI Act is to make sure AI stays “safe, transparent, traceable, non-discriminatory and environmentally friendly,” the European Commission, the European Union’s executive body, says in an explainer on the law.

The law rates AI companies based on four levels of risk: minimal, limited, high, or unacceptable. Those in the unacceptable range are already banned, for example AIs that are manipulative or that conduct social scoring, where they rank individuals based on behaviour or economic status.

Most generative AI falls into a minimal risk category, the Commission says. The owners of those technologies still have some requirements, like publishing summaries of the copyrighted data that companies used to train their AIs. 

Under the EU’s copyright laws, companies are allowed to use copyrighted materials for text and data mining, like they do in AI training, unless a creator has “reserved their rights,” Du Moulin said. 

Du Moulin said it's unclear how an artist can go about opting out of their work being shared with AI companies. 

“This whole conversation is putting the cart before the horse. You don't know how to opt out, but your work is already being used,” he said.

The EU’s AI Code of Practice on General-Purpose (GPAI), a voluntary agreement for AI companies, asks providers to commit to a copyright policy, put in place safeguards to avoid any infringements of rights, and designate a place to receive and process complaints.  

Signatories so far include major tech and AI companies such as Amazon, Google, Microsoft, and OpenAI.

AI providers have to respect copyright laws, the Commission says

The additional transparency requirements under the AI Act give artists clarity on who has already used their material and when, du Moulin added, making it difficult to claim any payment for work that’s already been scraped to train AI models. 

“Even if the AI Act has some good legal implications, it only works for the future – it will not be retroactive,” Du Moulin said.

“So everything which has been scraped already … it’s a free lunch for generative AI providers who did not pay anything”.

Adriana Moscono, GESAC’s general manager, said some of her members tried opting out by sending letters and emails to individual AI companies to get a license for their content, but were not successful. 

“There was no answer,” Moscono told Euronews Next. “There was absolute denial of the recognition of … the need to respect copyright and to get a license. So please, European Commission, encourage licensing”. 

Thomas Regnier, a Commission spokesperson, said in a statement to Euronews Next that AI providers have to respect the rights holders when they carry out text and data mining, and if there have been infringements, they can settle it privately. 

The AI Act “in no way affects existing EU copyright laws,” Regnier continued. 

Mandate licence negotiations, groups ask

Du Moulin and Moscono are asking the Commission to urgently clarify the rules around opting out and copyright protection in the law.

“The code of practice, the template and the guidelines, they don't provide us any capacity to improve our situation,” Moscono said. “They're not guaranteeing … a proper application of the AI Act”.

The advocates said the Commission could also mandate that AI companies negotiate blanket or collective licenses with the respective artist groups.

Germany’s Society for Musical Performing and Mechanical Reproduction Rights (GEMA) filed two copyright lawsuits against AI companies OpenAI, the parent of ChatGPT, and Suno AI, an AI music generation app. 

While not directly related to the AI Act, Du Moulin says the verdict could determine to what extent AI companies could be bound to copyright laws. 

The Commission and the European Court of Justice, the EU’s high court, have also signalled that they will review the text and data mining exemption in the copyright legislation issued in 2019, Du Moulin said. 

New AI companies have to make sure they are compliant with the AI Act’s regulations by 2026. That deadline extends to 2027 to companies already operating in the EU.