Recent trends in european copyright

What is text and data mining (TDM)?

An automated technique used to analyse large amounts of text and data to identify patterns and information.

Which directive introduced the EU's TDM exceptions?

The DSM Directive 2019/790

Which articles of the DSM Directive regulate TDM?

Articles 3 and 4.

What does Article 3 cover?

Text and data mining for scientific research purposes.

What does Article 4 cover?

General TDM of lawfully accessible works, unless rightholders expressly reserve their rights appropriately.

How can rightholders reserve their rights under Article 4?

Through an express reservation, for example using machine-readable means for online content.

How long can copies made under Article 4 be retained?

For as long as necessary for the purposes of TDM

Why is Article 4 important for generative AI?

It may provide a legal basis for using lawfully accessible copyright-protected works in AI training.

What are the three academic positions on Article 4 and AI training?

It does not apply; it applies but may fail the three-step test; or it can cover generative AI training.

What is an opt-out in AI training?

A way for rightholders to reserve their rights and prevent their works from being used for TDM under Article 4.

What is one difficulty with the opt-out system?

It can be difficult to express rights reservations clearly and in a machine-readable form.

What is GEMA v OpenAI (42 O 14139/24) about?

GEMA alleged that OpenAI used protected lyrics from nine German songs in AI training without a licence.

What was the outcome described in the slides for GEMA v OpenAI?

OpenAI was held responsible, and the court considered that a licence should have been obtained.

What historical argument is made about the DSM Directive and AI training?

It is uncertain whether EU legislators originally intended the general TDM exception to cover generative AI training.

What solutions does the Voss Report suggest?

Voluntary licensing, transparency, deepfake measures and labelling, research, and a repository of opt-out works.

What is the main difference between the EU and Asian approaches discussed?

The EU is more rights-oriented, while some Asian examples favour broader exceptions or compensation systems to facilitate AI development.

What are the three main rightholders involved in sampling?

Authors, performers and phonogram producers.

What does the author own rights in?

The musical work, such as the melody, rhythm and original lyrics.

What does the performer own rights in?

Their recorded performance, such as singing or playing an instrument.

What are moral rights?

Rights protecting the personal connection between creators and their works.

What are the three main moral rights?

Disclosure, attribution and integrity.

What does Article 2 of the InfoSoc Directive protect?

The exclusive reproduction rights of authors, performers and phonogram producers.

Can a very short sample infringe copyright-related rights?

Yes. Even a very short recognisable sample can infringe a phonogram producer's reproduction right.

What does Article 5(3)(d) of the InfoSoc Directive allow?

Quotations for purposes such as criticism or review, subject to certain conditions.

What does Article 5(3)(k) of the InfoSoc Directive allow?

Use of works for caricature, parody or pastiche.

What is the three-step test?

An exception must concern a special case, not conflict with normal exploitation, and not unreasonably prejudice the rightholder's legitimate interests.

What did Pelham I (C-476/17) establish?

Even a very short sample can constitute reproduction in part of a phonogram.

When can a sample potentially qualify as a quotation?

When it is used to engage in dialogue with the original work and meets the quotation requirements.

What did Pelham II (C-590/23) clarify about pastiche?

Pastiche is an autonomous EU concept requiring recognisable artistic or creative dialogue with an existing work.

Does pastiche have to be humorous?

No. It can also involve tribute, stylistic imitation or critical engagement.

What is upcycling?

Reusing existing products or materials to create a new product.

What happened in Hermès v Maison R&C (2025)?

The court found copyright and trade mark infringement after second-hand Hermès scarves were attached to Levi's jackets.

Can the copyright pastiche exception justify trade mark infringement?

No. Pastiche may be relevant to copyright, but it does not provide a trade mark exception.

Is there a single European Copyright Act?

No. Copyright is governed by national laws harmonised through EU directives and regulations.

What was the purpose of the InfoSoc Directive?

To harmonise important aspects of copyright and related rights in the information society.

What was the EU Digital Single Market Strategy?

A strategy launched in May 2015 to improve the functioning of the EU digital market.

What does the Portability Regulation 2017/1128 allow?

Subscribers to lawful online content services can access them temporarily in another EU Member State.

What does the SatCab Directive 2019/789 regulate?

Certain cross-border transmissions and retransmissions of television and radio programmes.

What is the purpose of the DSM Directive?

To modernise copyright rules for the digital environment.

Which DSM Directive articles cover text and data mining?

Articles 3 and 4.

What does Article 3 of the DSM Directive cover?

Text and data mining for scientific research purposes.

What does Article 5 of the DSM Directive cover?

Digital and cross-border teaching activities.

What does Article 6 of the DSM Directive cover?

Reproductions by cultural heritage institutions for preservation purposes.

What does Article 15 of DSM protect?

Press publishers' rights concerning online use of their publications.

How long does the Article 15 of DSM press publishers' right last?

Two years after publication.

Does Article 15 protect individual words and very short extracts?

No

What does Article 17 of the DSM regulate?

Online content-sharing service providers and their use of copyright-protected content uploaded by users.

What must online content-sharing providers generally obtain under Article 17?

Authorisation from rightholders, usually through a licence.

What does Article 18 of the DSM require?

Authors and performers must receive appropriate and proportionate remuneration.

What is the Best Seller Clause under Article 20 DSM?

Authors and performers can request additional fair remuneration if their original payment becomes disproportionately low compared with subsequent revenues.

What does Article 22 establish?

A revocation right allowing authors and performers to revoke an exclusive licence in cases of lack of exploitation.

Why can a sampler need permission from more than one rightholder?

Because using a recording can involve separate rights in the musical composition, the recorded performance and the phonogram itself.

Why do phonogram producers have reproduction rights even if the recording is not original?

Their rights protect the investment in producing the sound recording, rather than the originality of the musical content.

How do performers' moral rights differ from authors' moral rights?

Performers have narrower moral rights, whereas authors have broader moral rights protecting their personal connection with their works.

Why might the right of attribution be relevant when sampling?

The original creator may not be credited when their work is incorporated into a new recording.

Why are moral rights important even when a sampler has obtained an economic licence?

An economic licence does not automatically cover moral rights, so attribution and integrity concerns may remain.

Which fundamental rights are in tension in the context of sampling?

Article 13 of the EU Charter, protecting freedom of the arts, and Article 17(2), protecting intellectual property.

Does the protection of intellectual property under Article 17(2) of the Charter have absolute priority?

No. Intellectual property protection is not absolute and must be balanced against other fundamental rights.

Why does Article 17(7) of the DSM Directive matter for user-generated content?

t requires certain copyright exceptions, including quotation, parody and pastiche, to be available when users upload content to online content-sharing services.

What is the difference between the two roles of recognisability in Pelham I and Pelham II?

In Pelham I, recognisability can trigger infringement of the phonogram producer's rights. In Pelham II, recognisability helps establish artistic or creative dialogue for pastiche.

Why is the pastiche exception not a general permission to imitate existing music?

The use must create recognisable artistic or creative dialogue with an existing work; simple repetition or concealed imitation is insufficient.

What three questions should be considered when applying the three-step test to sampling?

Is the use a special case? Does it conflict with normal exploitation? Does it unreasonably prejudice the rightholder's legitimate interests?

How long does copyright protection generally last for an author's work according to the presentation?

Seventy years after the death of the last surviving author.

What protection periods does the presentation give for performers and phonogram producers?

Fifty or seventy years from publication, as set out in the presentation's table.

Why did the court reject the arguments supporting upcycling in Hermès v Maison R&C?

The court did not accept the artistic and environmental arguments as sufficient to overcome the copyright and trade mark infringement.

What is the central legal distinction between reselling a genuine branded product and upcycling it into a new product?

Reselling the original product may benefit from trade mark exhaustion, whereas creating a new product from its components is not automatically covered by exhaustion.

What is the purpose of implementing the Marrakesh Treaty into EU law?

To improve access to published works for people who are blind, visually impaired or otherwise unable to access printed text.

Why can obtaining individual licences for radio broadcasting be difficult?

A broadcast can involve several separate rights, including authors' rights, performers' rights and phonogram producers' rights.

What practical problem do collective management organisations solve?

They collect remuneration and grant licences on behalf of multiple rightholders, making it easier for users to obtain permissions.

What contractual imbalance does DSM Articles 18–22 seek to address?

Authors and performers often have weaker bargaining positions than the publishers, producers and other parties acquiring their rights.

Why does Recital 73 clarify that lump-sum payments can still be appropriate?

it recognises that a fixed payment can sometimes constitute proportionate remuneration, although it should not automatically be the general rule.

Does the Best Seller Clause only apply to contracts based on a percentage of revenue?

No. It can apply to different types of remuneration arrangements, including lump-sum payments.

Who is required to comply with the open internet access rules?

Internet service providers.

What are the three situations in which an ISP may restrict or block internet traffic under Article 3(3)?

To comply with a legal obligation; to preserve network security and integrity; or to prevent or mitigate exceptional or temporary network congestion

What condition applies when an ISP manages exceptional or temporary network congestion?

Equivalent categories of traffic must be treated equally.