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Thaler v. Perlmutter: Affirmation of human authorship in copyright law

Written by Antony09/04/2025

On March 18, 2025, the U.S. Court of Appeals for the District of Columbia Circuit rendered an impactful decision in the case of Thaler v. Perlmutter, reinforcing the principle that copyright protection is exclusively reserved for works created by human authors. This ruling has significant implications for the intersection of artificial intelligence (AI) and intellectual property law.

Introduction

The rapid advancement of artificial intelligence has revolutionized various sectors, including the creative industries. However, this technological evolution has raised complex legal questions, particularly concerning the eligibility of AI-generated works for copyright protection. The recent decision in Thaler v. Perlmutter addresses these issues head-on, providing clarity on the necessity of human authorship in copyright law.

Background of the case

Dr. Stephen Thaler, a pioneer in AI research, developed an artificial intelligence system known as the “Creativity Machine.” This system autonomously produced an artwork titled “A Recent Entrance to Paradise.” In 2019, Dr. Thaler sought to register this AI-generated artwork with the United States Copyright Office, listing the Creativity Machine as the sole author and himself as the copyright claimant.

Legal proceedings and arguments

A – Initial application and denial

The Copyright Office denied Dr. Thaler’s application, citing its longstanding policy that copyright protection extends only to works created by human authors. The Office emphasized that non-human entities, such as machines, cannot be recognized as authors under the Copyright Act.

B – District Court proceedings

Challenging the Copyright Office’s decision, Dr. Thaler filed a lawsuit in the U.S. District Court for the District of Columbia. He argued that the human authorship requirement was neither mandated by the Copyright Act nor the Constitution. The district court upheld the Copyright Office’s decision, affirming that human authorship is a fundamental prerequisite for copyright eligibility.

C – Appeal to the D.C. circuit

Undeterred, Dr. Thaler appealed to the U.S. Court of Appeals for the District of Columbia Circuit. He contended that the term “author” in the Copyright Act should encompass non-human creators, especially in the context of advanced AI systems capable of independent creativity.

Court’s analysis and rationale

A – Interpretation of author in the Copyright Act

The appellate court conducted a thorough analysis of the term “author” as used in the Copyright Act of 1976. Notably, the Act does not explicitly define “author.” However, the court examined various provisions within the Act that implicitly require human authorship:​

  • Ownership and transfer provisions: The Act presupposes that authors have the legal capacity to own property and transfer rights, capacities that machines inherently lack.​
  • Duration of copyright: Copyright protection is tied to the life of the author, a concept inapplicable to non-human entities.
  • Termination rights: The Act provides for termination rights exercisable by the author’s heirs, underscoring the human-centric framework of copyright law.

Based on these considerations, the court concluded that the Copyright Act necessitates human authorship for a work to qualify for copyright protection.​

B – Rejection of non-human authorship arguments

Dr. Thaler proposed that the work-for-hire doctrine allows non-human entities to be considered authors. The court rejected this argument, clarifying that the doctrine permits employers to be deemed authors of works created by human employees within the scope of their employment, but it does not extend authorship to machines or AI systems.

Implications for AI-Generated works

A – Human involvement in creative processes

The court’s decision reaffirms that copyright protection is reserved for works with identifiable human authorship. This does not preclude the use of AI in the creative process; however, there must be substantial human involvement and creative contribution for a work to be eligible for copyright protection.

B – Future considerations

As AI technology continues to evolve, the delineation between human and machine contributions may become increasingly complex. Future legal frameworks may need to adapt to address these challenges, ensuring that copyright law remains relevant in the age of artificial intelligence.

Conclusion

The Thaler v. Perlmutter decision underscores the enduring principle that human creativity is at the heart of copyright protection. While AI can serve as a valuable tool in the creative process, the law currently requires a human touch to confer copyright.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters.

Dreyfus Law Firm collaborates with a global network of IP attorneys to provide tailored legal solutions in the evolving field of AI and copyright.

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FAQ

1 – Does AI have copyright?
No. Under current legal frameworks in the United States, France, and most jurisdictions worldwide, artificial intelligence cannot hold copyright. Copyright law recognizes only natural persons (human beings) as authors. The recent ruling in Thaler v. Perlmutter (2025) reaffirmed that a work created autonomously by an AI system without human authorship is not eligible for copyright protection. Machines are regarded strictly as tools, not as legal subjects.

2 – Why does AI pose a threat to copyright law?
AI challenges the fundamental principles of copyright, particularly authorship, originality, and legal accountability. When a work is generated autonomously without substantial human input, it becomes difficult to assess whether it qualifies for protection and, if so, who owns the rights. Additionally, generative AI systems are often trained on protected datasets without authorization, raising significant risks of massive infringement, bypassing of creators, and erosion of intellectual property value. The mass production of AI-generated content also complicates the detection and protection of authentic human works.

3 – What is the impact of artificial intelligence on the law?
Artificial intelligence has a transformative effect on legal systems, presenting both challenges and opportunities:

  • In intellectual property law, it compels a re-evaluation of the concepts of authorship, ownership, and originality.
  • In contract law, it raises issues regarding the validity of agreements negotiated or executed by autonomous agents.
  • In liability law, it prompts questions about assigning responsibility for harm caused by AI systems.
  • In data protection law, it intersects with privacy regulations and the governance of algorithmic decisions.

Legal frameworks will need to evolve significantly while preserving their core principles, to provide a fair and effective regulatory response to AI-driven innovation.

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The Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. Case: Implications for AI training and copyright law

Written by Antony09/04/2025

Thomson Reuters Enterprise Centre GmbH et al v. ROSS Intelligence Inc., Docket No. 1:20-cv-00613 

In the rapidly evolving landscape of artificial intelligence (AI), the intersection of AI development and intellectual property rights has become a focal point of legal discourse. The case of Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. dated February 11, 2025 serves as a landmark in this context, addressing critical questions about the use of copyrighted materials in AI training processes.

Background of the case

Parties involved

Thomson Reuters Enterprise Centre GmbH and its subsidiary, West Publishing Corp., are prominent providers of legal research and information services, notably through their Westlaw platform. Ross Intelligence Inc., on the other hand, was an AI startup aiming to revolutionize legal research by developing an AI-powered platform to provide efficient legal information retrieval.

Nature of the dispute

The dispute arose when Thomson Reuters alleged that Ross Intelligence had unlawfully utilized content from Westlaw’s proprietary database to train its AI system. Specifically, Thomson Reuters contended that Ross had copied headnotes and other editorial enhancements from Westlaw without authorization, constituting copyright infringement. Ross Intelligence countered by asserting that their use of the materials fell under the fair use doctrine, a legal principle permitting limited use of copyrighted works without permission under certain circumstances.

Legal issues presented

Copyright infringement allegations

Thomson Reuters claimed that Ross Intelligence’s actions amounted to direct and willful copyright infringement. The crux of their argument was that the headnotes and editorial content in Westlaw are original works protected under copyright law, and Ross’s reproduction of these elements for commercial gain violated their exclusive rights.

Fair use defense

In response, Ross Intelligence invoked the fair use defense, arguing that their use of Westlaw’s content was transformative and served the public interest by fostering innovation in legal research. They posited that their AI system did not merely replicate the original content but utilized it to develop a novel tool that enhanced legal information accessibility.

Court’s analysis and decision

Evaluation of copyright claims

The court meticulously examined whether the materials in question were subject to copyright protection. It affirmed that the headnotes and editorial content produced by Thomson Reuters involved sufficient creativity and originality to warrant copyright protection, thereby recognizing them as protected works under the law.

Assessment of fair use doctrine

The court then evaluated the applicability of the fair use doctrine by analyzing the following factors:

  1. Purpose and character of the use: The court determined that Ross’s use was commercial and not sufficiently transformative, as it replicated the original content’s purpose.
  2. Nature of the popyrighted work: The works used were factual but included creative elements, weighing against fair use.
  3. Amount and substantiality of the portion used: Ross had used a substantial portion of the protected content, which was central to Thomson Reuters’ offerings.
  4. Effect on the market: The court found that Ross’s use could potentially supplant the market for Westlaw’s services, adversely affecting Thomson Reuters’ revenue.

Based on this analysis, the court concluded that Ross Intelligence’s use did not qualify as fair use and constituted copyright infringement.

Broader implications for AI and copyright

Impact on AI training practices

This ruling underscores the necessity for AI developers to exercise caution when using copyrighted materials for training purposes. It highlights that unauthorized use of protected content, even for innovative applications, may lead to legal repercussions. Developers are encouraged to seek licenses or utilize public domain data to mitigate infringement risks.

Future legal considerations

The case sets a precedent for how courts may approach similar disputes involving AI and copyrighted content. It emphasizes the importance of balancing technological advancement with the protection of intellectual property rights. Stakeholders in the AI industry should closely monitor legal developments and consider proactive measures, such as developing internal guidelines for content use and engaging in policy discussions to shape future regulations.

Conclusion

The Thomson Reuters v. Ross Intelligence case serves as a pivotal reference point in the ongoing dialogue between AI innovation and copyright law. It illustrates the complexities inherent in applying traditional intellectual property principles to modern technological contexts and signals a call to action for both legal professionals and AI developers to navigate these challenges collaboratively.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters. Our experts stay ahead of AI and copyright developments!

Dreyfus Law Firm collaborates with a global network of IP attorneys.

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FAQ

  1. What was the main issue in the Thomson Reuters v. Ross Intelligence case?
    The primary issue was whether Ross Intelligence’s use of Thomson Reuters’ copyrighted materials to train its AI system constituted fair use or copyright infringement.
  1. What is the fair use doctrine?
    Fair use is a legal principle that allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  1. How did the court rule on the fair use defense in this case?
    The court ruled against Ross Intelligence, determining that their use of the copyrighted materials did not meet the criteria for fair use and thus constituted infringement.
  1. What are the implications of this ruling for AI developers?
    AI developers must be cautious when using copyrighted content for training purposes and should consider obtaining licenses or using public domain data to avoid legal issues.
  1. Does this case affect all AI applications using copyrighted materials?
    While this case sets a significant precedent, each situation may differ based on specific facts. It’s advisable for AI developers to consult legal experts when dealing with copyrighted materials.
  1. Can AI systems use any copyrighted material under fair use?
    Not necessarily. The applicability of fair use depends on factors such
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Latest developments in generative AI and copyright: An in-depth analysis

Written by Antony09/04/2025

The rapid evolution of generative artificial intelligence (AI) has transformed the creation and use of content, raising complex questions regarding copyright. This article provides a comprehensive overview of recent legal actions and legislative initiatives related to generative AI and copyright, highlighting the challenges and opportunities that emerge in this dynamic landscape.

Recent legal actions in the United States

In the United States, several lawsuits have been initiated concerning the use of copyrighted works in training generative AI models.

Case of Kadrey v. Meta

In this class action lawsuit, authors Richard Kadrey, Sarah Silverman, and Christopher Golden allege that Meta Platforms Inc. infringed their copyrights by using their books to train its AI model, LLaMA (Large Language Model Meta AI). On November 20, 2023, the U.S. District Court for the Northern District of California dismissed several claims, including those for direct copyright infringement based on the derivative work theory and vicarious copyright infringement. However, the court allowed the plaintiffs’ claims related to the removal of copyright management information under the Digital Millennium Copyright Act (DMCA) to proceed, acknowledging that the plaintiffs had alleged sufficient injury for Article III standing. Subsequently, on March 10, 2025, the plaintiffs filed a motion for partial summary judgment on direct copyright infringement, arguing that Meta cannot rely on a fair use defense concerning its alleged acquisition of “millions of pirated works” used to train its model. ​

Legal proceedings against OpenAI and Microsoft

In December 2023, The New York Times filed a lawsuit against OpenAI and Microsoft, alleging that their AI models were trained using the newspaper’s articles without authorization, constituting copyright infringement. This case underscores the growing tensions between content creators and AI developers regarding the use of protected works in AI training. As of March 2025, a federal judge has allowed the lawsuit to proceed, dismissing some claims but permitting the core allegations of copyright infringement to move forward. ​

International legal developments

Legal actions related to generative AI and copyright are also increasing internationally.

Legal action in France against Meta

In France, three associations representing authors and publishers—the Syndicat National de l’Édition (SNE), the Société des Gens de Lettres (SGDL), and the Syndicat National des Auteurs et des Compositeurs (SNAC)—have initiated proceedings against Meta. They allege that Meta used copyrighted works without authorization to train its generative AI model. This is the first action of its kind in France, demanding copyright enforcement and the complete removal of data repositories used for AI training.​

Legislative and regulatory initiatives

In response to these challenges, several legislative and regulatory initiatives have been proposed or implemented.

United States: Generative AI Copyright Disclosure Act

In April 2024, U.S. Representative Adam Schiff introduced the Generative AI Copyright Disclosure Act. This bill requires companies to disclose the copyrighted works used to train their generative AI systems by submitting a notice to the Register of Copyrights at least 30 days before the public release of a new or updated AI model. Penalties for non-compliance start at $5,000, with no maximum penalty specified.

European Union: AI Act

In the European Union, the proposed Artificial Intelligence Act (AI Act), which was formally adopted on 13 March 2024, includes specific provisions designed to address intellectual property concerns related to generative AI.

Among its key requirements, the AI Act mandates that developers of general-purpose AI models, including generative AI systems, must provide detailed documentation on the content used for training, including information on whether the datasets contain copyright-protected material. This transparency obligation is aimed at ensuring that rights holders are aware of how their works may have been used.

Additionally, the Act introduces a duty to clearly label AI-generated content, enabling consumers and rightsholders to identify content created without direct human authorship.

These measures reflect the EU’s broader objective to strike a balance between fostering AI innovation and safeguarding intellectual property rights, especially as tensions grow between creators and developers of large-scale AI systems.

Conclusion

The intersection of generative AI and copyright law is a rapidly evolving field, marked by significant legal actions and legislative efforts worldwide. As AI technology continues to advance, it is imperative for stakeholders—including developers, content creators, and legal professionals—to stay informed and engaged with these developments to navigate the complex landscape effectively.

FAQs

What is generative AI?
Generative AI refers to artificial intelligence systems capable of creating content, such as text, images, or music, based on patterns learned from existing data.

Why is generative AI raising copyright concerns?
Generative AI models are often trained on large datasets that include copyrighted works, leading to concerns about unauthorized use and potential infringement.

What is the Generative AI Copyright Disclosure Act?
It is a proposed U.S. legislation requiring companies to disclose the copyrighted materials used to train their generative AI systems, aiming to increase transparency and protect creators’ rights.

How is the European Union addressing AI and copyright issues?
The EU’s proposed Artificial Intelligence Act includes provisions for transparency in the use of copyrighted materials for AI training and mandates labeling of AI-generated content.

What should companies developing generative AI models consider regarding copyright?
Companies should ensure they have the necessary rights or licenses for the data used in training their models and stay informed about evolving legal and regulatory requirements to mitigate infringement risks.

At Dreyfus Law Firm, we specialize in intellectual property law and are committed to assisting clients in navigating the complex intersection of AI and copyright. Our firm collaborates with a global network of attorneys specializing in intellectual property to provide comprehensive support.

Dreyfus Law Firm is in partnership with a global network of Intellectual Property attorneys, ensuring comprehensive assistance for businesses worldwide.

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Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd (Case C-159/23)

Written by Dreyfus04/02/2025

On October 17, 2024, the Court of Justice of the European Union (CJEU) delivered a pivotal judgment in the case of Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd (Case C-159/23). This decision addresses the extent of copyright protection for computer programs under Directive 2009/24/EC, particularly concerning software that modifies variable data during program execution without altering the program’s source or object code.

Background of the case

Sony, a leading developer and distributor of PlayStation consoles and associated video games, initiated legal proceedings against Datel, a company specializing in software and devices that interact with gaming consoles. It identified that Datel was marketing products such as the “Action Replay PSP” software and the “TiltFX” device. These products allowed users to alter gameplay by unlocking features or modifying controls, achieved by running concurrently with Sony’s games and altering variable data in the console’s random access memory (RAM) during execution. Sony contended that such modifications infringed upon its exclusive rights to authorize alterations of its computer programs, as protected under Directive 2009/24/EC on the legal protection of computer programs.

Legal questions referred to the CJEU: Analysis and judgment

The Bundesgerichtshof (Federal Court of Justice, Germany) referred two primary questions to the CJEU:

  1. Scope of Protection: Does the modification of variables transferred to a computer’s RAM by a protected program, without altering its source or object code, fall within the protection afforded under Article 1(1) to (3) of Directive 2009/24/EC?
  2. Definition of Alteration: Does such modification constitute an “alteration” under Article 4(1)(b) of the Directive, which grants the copyright holder exclusive rights to authorize or prohibit any alteration of their computer program?

In its deliberation, the CJEU focused on the interpretation of “forms of expression” of a computer program as protected under Article 1 of Directive 2009/24/EC. The Court emphasized that protection extends to the program’s source code and object code, as these are the expressions that enable the reproduction or subsequent creation of the program. Conversely, elements such as functionalities, programming languages, and data file formats do not constitute protected forms of expression.

The Court concluded that the content of variable data inserted by a program into a computer’s RAM during execution does not fall within the protection conferred by the Directive, provided that such content does not enable the reproduction or subsequent creation of the program. Consequently, modifying these variables without altering the source or object code does not constitute an infringement of the copyright holder’s exclusive rights under Article 4(1)(b).

Implications of the decision

This judgment delineates the boundaries of copyright protection for computer programs within the EU, clarifying that:

  • Variable Data vs. Source Code: Alterations to variable data during program execution, which do not impact the source or object code, are outside the scope of protection under Directive 2009/24/EC.
  • Functional Modifications: Software that interacts with existing programs by modifying runtime variables, without altering the program’s code, does not infringe upon the exclusive rights of the original program’s copyright holder.

This decision has significant ramifications for developers of ancillary software, such as game enhancement tools or customization applications, affirming that certain modifications at the execution level are permissible under EU copyright law.

Conclusion

The CJEU’s ruling in Case C-159/23 provides critical guidance on the interpretation of copyright protection for computer programs, particularly concerning the distinction between protected forms of expression and permissible modifications during program execution. This clarification is essential for both software developers and rights holders in understanding the legal parameters of program modification and the scope of intellectual property rights within the European Union.

At the Dreyfus firm, we bring expertise across all areas of intellectual property, including copyright law, to provide you with the highest level of guidance and protection for your rights and innovations.

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The EU AI Act and Its Implications for Global Business

Written by Dreyfus14/10/2024

Rapid artificial intelligence (AI) technology development has created the need for clear and harmonized regulation to ensure ethical use, safety, and innovation. The European Union’s AI Act (EU AI Act) is poised to become the world’s first comprehensive legal framework regulating AI, impacting not only European businesses but global industries operating within or interacting with the EU market. This article delves into the key aspects of the EU AI Act and its far-reaching implications for global business operations.

 

Overview of the EU AI Act

The Scope of the AI Act. The EU AI Act categorizes AI systems into different risk levels—unacceptable, high, limited, low, and minimal—each requiring varying degrees of regulatory scrutiny. The legislation primarily targets high-risk AI systems that significantly impact people’s safety, rights, and freedoms. These include AI applications in healthcare, transportation, and critical infrastructure sectors.

Compliance Requirements for High-Risk AI Systems. Under the AI Act, businesses must adhere to stringent compliance requirements for high-risk AI systems. These compliance requirements include conducting conformity assessments, ensuring robust risk management systems, and maintaining transparency and accountability throughout the AI lifecycle. Companies must also prepare for regular monitoring and audits, which designated authorities across EU member states will enforce.

 

Implications for Global Businesses

Direct Impact on AI Developers and Providers. Any company developing or providing AI systems based within or outside the EU must comply with the EU AI Act if its products are used within the Union. This extraterritorial reach of the regulation means that global businesses, particularly those in tech-heavy industries, must prioritize legal compliance to avoid penalties, including fines of up to 6% of their global annual turnover.

Increased Costs of Compliance and Innovation. The need for AI system conformity assessments, data governance policies, and risk management frameworks can significantly improve operational costs. For non-EU businesses, navigating the complex compliance landscape may require engaging local legal and technical experts, further driving up costs. However, these compliance measures also encourage responsible AI development and consumer trust, potentially opening new markets for companies able to demonstrate adherence to ethical AI standards.

 

Strategic Considerations for Businesses

Risk Mitigation and Liability. Understanding the liability risks associated with AI implementation under the EU AI Act is critical for global businesses. Companies must proactively establish comprehensive risk management processes to mitigate the legal and financial risks tied to AI systems that are deemed high-risk. Compliance can help reduce liability exposure and enhance operational security.

Competitive Advantages of Early Compliance. While compliance with the EU AI Act may initially seem burdensome, businesses that invest in early compliance efforts stand to gain significant competitive advantages. These include improved consumer trust, better market positioning in Europe, and reduced risk of facing regulatory penalties. Additionally, businesses that adhere to the Act’s principles will likely see enhanced brand reputation globally as ethical AI becomes a growing concern for consumers and regulators worldwide.

 

Broader Global Impact of the EU AI Act

Influence on Other Jurisdictions. As the EU AI Act sets a global precedent, other jurisdictions, including the U.S., China, and the UK, are expected to follow suit with their own AI regulations. This cascading effect may lead to the global harmonization of AI laws, pushing businesses to simultaneously adapt their AI strategies in multiple markets.

The Role of AI in International Trade. AI has become integral to various industries, and its regulation will affect international trade agreements, especially those involving digital products and services. Global companies must prepare for AI-related clauses to appear in trade negotiations, with compliance with the EU AI Act becoming a critical element of future international agreements.

 

Conclusion

The EU AI Act represents a landmark regulatory effort that will have significant implications for global businesses. While the compliance requirements are rigorous, they offer opportunities for companies to lead in the AI space by embracing ethical AI practices. The key for businesses is to view this regulatory shift not as a burden but as a pathway to building trust and ensuring sustainable growth in the ever-evolving world of artificial intelligence.

 

Our expertise in intellectual property enables us to guide companies through the regulatory challenges related to artificial intelligence. The European AI Act imposes strict requirements for compliance, transparency, and risk management, particularly for high-risk AI systems. With our deep understanding of intellectual property and emerging technologies, we help our clients navigate this complex framework, protecting their innovations while ensuring they meet the new standards.

 

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What are the benefits of IP litigation and how can you make the most of it?

Written by Dreyfus13/03/2023

litigation, Lady of Justice, Justitia, statueIntellectual property (IP) litigation is an important tool for protecting and enforcing rights in IP assets, such as patents, trademarks, and copyrights. When an IP owner’s rights are infringed or someone else is using their IP without permission, the owner may have the right to take legal action against the offender. IP litigation can help the owner to protect their valuable IP assets, as well as their reputation and market position.

 

The benefits of IP litigation include:

 

1. Protection of IP Rights IP litigation is an effective way to protect your IP assets from infringement. It allows you to enforce your IP rights and stop unauthorized use of your IP, while also deterring future infringers. By filing a lawsuit, you can also seek damages or other relief to make up for any losses caused by the infringement.

 

2. Strengthening of IP Rights Through the process of IP litigation, you can also strengthen your IP rights. This is because the court may issue an injunction that requires the infringing party to stop using your IP or to pay you for any profits they made from using your IP. This can help to bolster your IP rights and make it more difficult for others to infringe on them in the future.

 

3. Deterrence of Unlawful Use The threat of IP litigation can also act as a deterrent to others who may be considering using your IP without permission. By demonstrating that you are willing to take legal action to protect your IP rights, you can create a deterrent effect that can help to discourage others from infringing on your IP.

 

4. Valuable Legal Remedies IP litigation can also provide you with valuable legal remedies that can help you to recover the costs of defending your IP rights. In some cases, you may be able to recover damages or other relief to compensate you for any losses caused by the infringement.

 

In addition to these benefits, IP litigation can also provide you with a sense of satisfaction that you are protecting your IP rights and standing up for what is right. It can be a powerful way to make sure that your IP is respected and protected. So how can you make the most of IP litigation? Here are a few tips:

 

1. Understand Your IP Rights The first step to making the most of IP litigation is to understand your IP rights. You should be familiar with the different types of IP protection and what rights they provide, as well as any related laws or regulations. This will help you to identify potential infringements and determine whether or not you have the right to take legal action.

 

2. Seek Professional Advice It is also important to seek professional advice when it comes to IP litigation. An experienced IP lawyer can provide you with guidance on your legal rights and remedies, as well as help you to pursue a successful legal action.

 

3. Take Action Quickly Acting quickly is key when it comes to IP litigation. You should take action as soon as you become aware of a potential infringement, as the longer you wait, the more difficult it may be to prove your case.

 

4. Gather Evidence The more evidence you have to support your case, the stronger it will be. This means gathering evidence such as documents, emails, and other records that show the infringement occurred.

 

By following these tips, you can make the most of IP litigation and protect your valuable IP rights.

 

 

 

 

 

We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets.  We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.

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How does the Chinese Hangzhou Internet Tribunal decision set the pace for copyright protection on NFTs platforms?

Written by Dreyfus08/11/2022

NFT HANGzouNFTs, or non-fungible token is one the biggest digital revolutions of our century. An NFT is a digital token operating on a blockchain.

 Because it is non-fungible, an NFT guarantees someone’s property over a digital artwork. When it is combined with an artwork, an NFT can be considered as a certificate of authenticity.

 

Although an NFT is a revolution within the digital world, some issues may be raised. In fact, what about artists’ copyrights in this digital environment? How can artists’ copyrights be protected within NFT platforms? Can an NFT platform be held liable for copyright infringement? There are many proposals for reasonable responses called forth by intellectual property attorneys.

Copyright law is meant to protect artists’ rights over their artistic or literary artworks. Particularly, copyright law protects books, musical artworks, paintings but also database.

Everybody can sell or buy digital artworks on a blockchain. Therefore, what about platforms’ liability? If every one of us can sell or buy artworks, there is absolutely no guarantee that the artworks has been put on the platform by its author. As such, it is fairly common that an artwork put on a blockchain infringes the author’s copyrights. In such case, it is crucial that the author defends for their rights in collaboration with the intellectual property attorneys.

The answer to know whether an NFT platform can be held liable for copyright infringement has been raised in the case  Shenzhen Qice Diechu Culture Creation Co. Ltd v. Hangzhou Yuanyuzhou Technology Co., Ltd a.k.a “Chubby tiger having its shot”.

In this case, Ma Qianli, the author of the cartoon at stake gave to Shenzhen Qice Diechu Culture Creation an exclusive license to use his copyright over the “Chubby tiger having its shot” artwork. Defendant, Hangzhou, owns an NFT platform. This latter authorized a third party to sell NFT derivative products of the “Chubby tiger having its shot” artwork. Shenzhen then brought a lawsuit for copyright infringement against the NFT platform.

This decision is important for two reasons. Firstly, it is the first decision where copyright infringement is involved on an NFT platform in China. Secondly, the action is brought against an NFT platform.

The first question raised by this case deals with NFT platforms liability. By definition, a blockchain is decentralized. That means that nobody nor any entity checks the identity of a person.

Therefore, NFT platforms do not check the paternity of an artwork linked to an NFT. A person can sell or buy NFT-artworks and it is not even the author nor a licensee. Hence, counterfeit artworks can freely circulate on NFT platforms, infringing artists/creators’ copyrights.

Because it is difficult to sanction platforms when a content is illicit or infringe someone’s copyright, it is rare for authors to assert their rights on the Web 3.0.

In this case, defendant raises some arguments to avoid liability. First of all, defendant mentions that his platform is a third-party platform. Artworks are downloaded by the platform’s users. This latter cannot be held liable for its users’ activities. Thus, the platform put the concerned NFT on its address form. Therefore, it fulfilled its notification/deletion obligation. At last, a platform cannot divulgate which blockchain has been used nor where the NFT is.

The Internet Tribunal refuses the arguments raised by defendant. In fact, it considers that the platform at stake is a professional platform. Consequently, the Tribunal highlighted a major distinction between NFT platforms. Here, the platform is considered as being a professional NFT platform. The underlying idea is that as soon as a platform is qualified as professional, its liability can be engaged for copyright infringement.

Even though the Tribunal does not when  an NFT platform is a professional, it can still be deduced. In fact, the platform at sake is qualified as professional because it proposed transactional services. Consequently, it is a professional NFT platform when it invoices certain percentages fees for each transaction.

Because a transaction has been made and because the platform obtained a financial gain, the platform must fulfil higher obligations when it comes to copyright protection. For example, a professional platform must proceed with preliminary examination regarding the digital artworks’ property that are sold or bought on their platforms. This activity may be efficiently conducted in collaboration an intellectual property attorney.

The Tribunal here considers that the platform failed its duty of care. In this regard, when an NFT platform is professional, it must put in place reasonable measures to check the artworks’ property once they are put on a blockchain by asking to the seller/artist to prove the artworks’ copyright.

The first Chinese NFT copyright infringement was made against a platform since the appellant could not obtain the name of the seller. Claimant, during the proceeding, asked for the seller’s identity in order to sue him for copyright infringement. Consequently, this case is not over yet.

Nevertheless, this case set the pace as for NFT platforms. This decision can be seen as a warning for every NFT platforms which will have to be careful regarding each NFT digital artworks sold or bought on their platforms.

 

SEE ALSO…

 

What are the legal issues behind the registration of Off-Chain NFTs?

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Copyright in front of artificial intelligence

Written by Dreyfus13/12/2021

IA et droit d'auteurFollowing a decision by the Shenzhen Nashan People’s Court in China, a work generated by an algorithmic program has been deemed eligible for copyright protection.

 

1. An infringement action of a work produced by an automated program

 

Tencent, a company specializing in internet services and online advertising, published on its website a financial report article written by an algorithm-based intelligent writing system and data set, called « Tencent Robot Dreamwriter ».

After noticing that the article was reproduced without permission on a website operated by Shanghai Yingxun Technology, Tencent filed an infringement action against the said company.

However, the underlying and main issue in this dispute is whether a work generated with the help of artificial intelligence can adequately benefit from copyright protection.

The issue has been a constant source of controversy on an international scale for several years, and the Beijing Internet Court ruled in 2019 that only legal subjects expressly specified by Chinese copyright law should be considered as appropriate authors of works. Therefore, algorithmic programs are excluded. The court had also investigated on the process of generating the artificial intelligence at issue.

 

 

2. A precarious apprehension of creations generated by artificial intelligence

 

According to Revised Issues Paper on Intellectual Property Policy and Artificial Intelligence of May 21, 2020 prepared by the WIPO Secretariat, a distinction should be made between « AI generated », which does not require human intervention and which can modify its behavior during an operation in accordance with the application of various factors and « AI assisted », which conversely requires material human intervention and/or direction.

Regarding the European Union, the Delvaux Report adopted in February 2017 by the European Parliament proposed to grant a « sui generis » intellectual property protection to works created by artificial intelligence and to reflect on the criteria of proper intellectual creation applicable to copyrightable works created by computers or robots.

3. Towards an evolution of copyright in the field of artificial intelligence

 

The case opposing Tencent to Shanghai Yingxun Technology is the first litigation to support copyright protection for a work generated by an algorithmic program.

During the proceeding, Tencent explained the entire process of the “creative team” used to generate and publish the article with the assistance of the “Dreamwriter” robot.

The court carried out a reasoning based in particular on two points of assessment.

Firstly, attention was classically paid to the form of expression, the content and structure of the article that have been judged original.

Then, the court turned to the generation process of the article. In this regard, it focused on the presence of factors indicating the creator’s individual selections, judgment and required skills, recognizing that the creation process differed from the ordinary process of creating written works.

This court decision tends to favor, eminently, a possible extension of copyright protection to works generated by artificial intelligence on an international scale. However, reflections on the criteria that could be specifically retained in order to appreciate the benefit of the protection of these works coming from a creative process that has been excluded until now, will continue to feed, and even prolong, the debate.

In order to offer our clients a unique expertise, necessary for the exploitation of intangible assets, we keep you informed about intellectual property and digital economy issues through articles written by Dreyfus’ legal team.

 

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What are the new provisions of the April 17, 2019 European Directive on copyright?

Written by Dreyfus03/09/2021

author rightsAside from including related rights for press publishers and press agencies, and rebalancing relations between rights holders and content sharing platforms, the April 17, 2019 Directive strengthens the position of authors vis-à-vis assignees. These last provisions about copyright have just been transposed into French law.

 

The transposition marks a significant step forward in protecting creators and cultural organizations in the digital age. While cultural pieces of work are becoming more and more accessible online, this provision reaffirms the importance of copyright.

 

Copyright begets fair remuneration of artists and creative enterprises in the member states of the European Union. The Directive’s purpose is to establish a global framework, where intellectual creators, authors, content editors, service providers and users will all be able to benefit from clearer, modernized and adapted rules of the digital era. As such, the Directive aims to ensure that online press publishers and authors/artists receive better renumeration – especially when leading platforms such as Google News or Youtube use their work. The adoption of this Directive is the result of negotiations that lasted more than two years.

 

What are the new provisions of the Directive?

The Directive aims at modernizing the European Union copyright law, taking into account the increase in digital and cross-border uses of protected content. This directive mainly provides:

 1) measures to adapt certain exceptions and limitations to the digital and cross-border environment, among which are exceptions concerning:

– text and data mining (TDM exception),

– the use of works in digital and cross-border teaching activities, in particular the accessibility needs of people with disabilities, and

– conservation of cultural heritage;

2) measures to improve licensing practices and ensure more extensive access to content, which consist of harmonized rules facilitating:

– the exploitation of works that are not commercially available,

– the extension of collective licensing contracts by collective management organizations to rightsholders who have neither authorized nor excluded the application of these mechanisms to their works,

– the negotiation of agreements to make works available on video-on-demand platforms (VoD platforms), and

– entry into the public domain reproduction of works of visual art at the end of the initial term of protection; and

3) measures to ensure fair market practices with respect to copyright, liability of content sharing platforms, and contracts for the remuneration of authors and performers.

Similarly, Article 15 of the said Directive creates a new neighbouring right for press publishers. Remember, neighbouring rights are exclusive rights, more recent than copyright, and are exercised independently of the latter. They were born from the need to make the auxiliaries of creation benefit from making their works available to the public. Finally, article 17 (ex-article 13) created a liability regime adapted for internet content sharing platforms, while establishing a new exception for the monopoly of rightsholders.

 

What are the new obligations of content-sharing platforms?

The targeted main players (Title IV of the Directive) are platforms for mass sharing of copyright and related rights protected content – such as such as Google, YouTube, Dailymotion, or Facebook. The Directive more precisely defines it as:

 

“The provider of an information-focused service, whose main objective or one of its main objectives is to store and give the public access to a significant quantity of copyrighted works  or other protected subject matter  that has been uploaded by its users, which it organizes and promotes for profit.”

 

There are cumulative criteria that determine their obligations. Platforms that have been active for less than three years and have an annual turnover of fewer than 10 million euros will be subject to reduced obligations. On the other hand, platforms exceeding this limit will be subject to a proactive obligation provided for by the Directive regarding works distributed without authorization. The Directive excludes from the liability regime non-profit online encyclopedias such as Wikipedia, non-profit educational and scientific directories, open-source software platforms, online marketplaces like Amazon, Cdiscount or eBay, and individual cloud storage services with no direct access to the public. With regard to the regime applicable to content sharing platforms falling within the above-mentioned scope, the most important thing is to have the rightsholders’ authorization, which allows copyrighted work to be available to the public through, for example, a license agreement.

 

Can platforms be exonerated from liability?

Platforms may be exonerated from liability if it meets the following three cumulative conditions:

– That it has “made its best efforts” to obtain permission from the rightsholder to release the work to the public,

– That it has “made its best efforts” “in accordance with high industry standards of professional diligence” to ensure the unavailability of the copyrighted work once the unauthorized communication of it has been reported by the rightsholder by means of “relevant and necessary information,“

– That it acted promptly to withdraw or block access to the work upon receipt of “sufficiently motivated” notification from the rightsholder.

 

Finally, the platforms must be transparent towards rightsholders about the measures taken within their area of responsibility. This Directive gives certain platforms greater responsibility for the content they publish. Meanwhile, the liability system for online selling platforms, where counterfeits abound, will not change. Their status as host or publisher will always determine their liability regime.

In France, in addition to the debates surrounding compliance with the Intellectual Property Code, it will be interesting to see to the court’s decisions in the months to come.

We are a law firm with a unique expertise in the exploitation of intangible assets. We keep you updated on issues related to intellectual property and the digital economy through articles written by the Dreyfus legal team.

 

 

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Transposition of the AVMS Directive in France: what impact on the audio-visual sector?

Written by Dreyfus29/07/2021

Zapping sur une plateforme de vidéo à la demande Directive (EU) No. 2018/1808 of the European Parliament and of the Council, adopted on November 14, 2018 and amending Directive 2010/13/EU (AVMS Directive), has (finally) been transposed into French law, via the Order of  December 21, 2020. This directive is part of a context of international competition on the one hand and profound transformation of the audio-visual and the evolution of demand on the other hand.

Redefinition of the essential concepts of the 2010 European Directive

The Order deals with essential concepts that one needs to fathom to understand the issues at stake. First of all, what are audio-visual media services (AVMS)? There are two types:

  • Linear television services (traditional services);
  • Non-linear services, e.audio-visual content-on-demand services or media-on-demand services (MOS). These SMAD services allow the customer to choose both when and what they wish to watch.

The Order also calls into question certain principles, such as the old principle of media chronology resulting from a 1960 legislation. This legislation coordinated the diffusion of films, after their release in cinemas, to optimise their profitability.

Modernisation and adaptation of the rules to the transformation of audiovisual services

The Order transposing the Directive has implemented several measures aiming to ensure the effective contribution by market players and to protect both the minors and the public.

The system of financing national cinematographic and audio-visual creations has indeed been completely revised by the Directive. From now on, the country of origin principle applies: each EU Member State may exercise its production contribution regime to foreign VOD (Video On Demand) channels and platforms offering a service on the territory of that Member State. 

While this principle is a leading point of the reform, the AVMS Directive also acknowledges the profound changes in multimedia by extending audio-visual regulation to video-sharing platforms, social networks and live video platforms. This way, Brussels wishes to protect minors against certain harmful content and harmonise the legal framework of the European audio-visual sector.

Reform of the 1986 Act and safeguarding the French cultural exception

France wanted to implement the directive and collaborate in the European project while defending the French cultural exception. The Order is mainly concerned with reinforcing the rules of transparency for service publishers and with establishing more complete objectives, such as the inclusion of the system of funding for production (particularly independent production) over time, but also the guarantee that French broadcasters and global platforms are on an equal footing.

Article 19 of the Order, therefore, now requires “publishers of television services and on-demand audio-visual media services aimed at French territory” “when they are not established in France and do not fall under the jurisdiction of France”, to financially contribute in the same way as French publishers do.

Article 28 substantially reforms the principle of media chronology and now allows the industry players to negotiate an agreement with the professional organisations within six months to reduce broadcasting delays.

Extension of the powers of the CSA and protection of minors

As platforms are now part of the regulatory landscape, the CSA has seen its competencies and powers broadened and, in particular, has been assigned two new essential missions: the accessibility of AVMS programmes, and the protection, in particular of minors, against content that is violent, incites hatred or constitutes a criminal offence. The CSA will then have jurisdiction if the head office or a subsidiary of the platform is established in France.

Furthermore, the CSA is also in charge of ensuring that publishers have issued guidelines of best practice (particularly regarding food advertising to which minors could be exposed) and highlighting audio-visual services of general interest on new audio-visual platforms.

In addition, the Order completes Article 15 of the 1986 Act by prohibiting in programmes not only incitement to hatred and violence but also a provocation to commit acts of terrorism, while entrusting the CSA with the task of ensuring that these provisions are respected.

 

If the Oder is already a significant step forward, the implementing decrees are just as important. In particular, on June 23, 2021, the audio-visual media services on-demand decree (or SMAD decree n°2010-1379 of November 12, 2010) was published in the French Journal Officiel, which probably represents the most valuable step in the project to modernise the financing of French and European audio-visual services. Among other things, SMADs will have to devote at least 20% of their turnover in France to finance the production of European or original French cinematographic and audio-visual works.

 

Finally,  negotiations are underway between TV channels and producers’ representatives about reviewing a second decree known as “DTT” (Digital Terrestrian Television decree No. 2010-747 of July 2, 2020), which defines the production obligations of TV channels. The points discussed concern particularly the sharing of copyright on works between producers and TV channels and the lasting of these rights.

 

We are a law firm with a unique expertise in the exploitation of intangible assets. We keep you updated on issues related to intellectual property and the digital economy through articles written by the Dreyfus legal team.

 

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