Why are we declaring an opt-out?
Why is ZAiKS declaring a so-called opt-out, or reservation of rights for the purposes of text and data mining?
What is TDM?
Artificial intelligence (AI) relies on machine learning techniques such as the text and data mining (TDM) technology. The amended Act on Copyright and Related Rights defines TDM analysis as the use of solely an automated technique to analyze text and data in digital form to generate specific information, which includes in particular patterns, trends, and correlations. The term data is broad and applies not only to separate information - such as survey responses or numerical data - but also to a wide range of digital content, including copyright-protected data.
AI tools use TDM to collect and analyze data from very large sets, dissecting them in accordance with predetermined objectives and identifying all patterns and correlations. By analyzing and combining huge amounts of information and examining their structure and composition, these systems can thus, on their own, generate creations that are confusingly similar to human creative output (music, images, films, and texts). In this way, they enter into direct competition with the works of creators, furnishing, for example, an alternative supply for entertainment or informational content.
What is the copyright exception for TDM?
The amendment of the Copyright Law, as part of the implementation of EU law, introduced by means of Articles 262 and 263 two types of copyright exceptions dedicated to TDM techniques:
- the TDM exception for research purposes, which can only be relied upon by research organizations and cultural heritage institutions
- the TDM exception for other purposes, which applies to the use of texts and data by all other types of entities for any purpose, including commercial use.
This means that if the requirements of the law are met, entities are free to use TDM technology to, for example, train AI systems on works without infringing the copyright of creators.
However, the ability to apply the TDM exception for non-scientific purposes depends, among other things, on whether the use of copyrighted works for the purpose of exploration has not been reserved by rightsholders by means of a so-called opt-out.
What is the function of the opt-out, or reservation of rights for TDM purposes?
The Society of Authors ZAiKS considers that declaring a reservation of rights from the copyright exception for TDM is necessary to properly protect the rights of creators. Without the opt-out, there is no possibility of claiming copyright remuneration in connection with training AI on human-made content. The Society, like other authors’ societies around the world (see, for example, the CISAC report of 4 December 2024), opposes AI market participants using human-created works without first securing proper licenses from the authors.
Such activity constitutes unfair parasitism of the author’s works, which takes the form of years of non-contractual use of legally protected content for the purpose of training generative AI models to enhance their ability to imitate not only human creativity but also the style and aesthetics of specific artists. As can be seen from current press releases, rightsholders are increasingly targeting lawsuits (mainly in the US) against AI model providers who develop their products in disregard of the rights of creators, performers and producers. All of this demonstrates how important it is to take steps to create a strong licensing market for users who offer generative AI systems trained on human-created works.
This is why we are declaring the opt-out—a reservation of rights for the purposes of TDM. Only in this way can we ensure that advancements in AI technology are achieved without further harm to human culture and creativity.