EU legal adviser finds limited uses of Google AI could run afoul of publishers’ rights

(CN) — Google’s chatbot can poach a newspaper’s readers without breaking copyright law, but serving up a recognizable substitute for its stories is another matter, an adviser to Europe’s top court said Tuesday.Hungarian publisher Like Company is asking a Budapest court to find that Google Ireland infringed its rights by using its articles without permission through Bard, now called Gemini. The Hungarian court sought guidance from the Court of Justice of the European Union, in the court’s first case over generative AI.In a nonbinding opinion, Advocate General Maciej Szpunar advised setting aside AI training questions as hypothetical: Nothing supported the claim that Like’s articles trained Gemini, and training fell outside the specific publishers’ right invoked.He concentrated on the chatbot retrieving articles to answer users’ questions.That process could infringe publishers’ rights through unlawful access, including bypassing effective paywalls or bot barriers, or through answers that recognizably reproduced an article’s expression enough to replace the original entirely. Rewording is not necessarily enough to avoid infringement. Making a publication available to the public would additionally require such reuse to appear systematically in answers to related questions.The protection covered an article’s arrangement, structure and phrasing. Invoking freedom to share and receive information, Szpunar wrote: “Under that freedom, in a democratic society, no one should be granted an exclusive right over information as such.”Providers could be responsible where infringement was inherent in their business model or they failed to take appropriate preventive measures. Like’s example appeared not to meet his conditions, Szpunar said, leaving the factual assessment to the Hungarian court.An unlikely subject supplied the test: dolphins. In July 2023, Like reported on Hungarian singer Kozsó’s longstanding ambition to create an aquarium at Lake Balaton. Asked to summarize the coverage, Google’s chatbot drew on the article. Like depended on advertising revenue from website visits; an answer on Google could give readers one less reason to click through.At the March hearing, Like’s lawyer described the example as part of a broader pattern of unpaid reuse that threatened publishers’ bargaining power. Google’s lawyers countered that Gemini predicted words rather than retrieved stored articles, so similarities did not establish copying. They said no specific reproduction had been proved.A 2019 European law gave publishers control over certain online reuse of their publications to help them recover their investment. Like invoked that narrower protection, rather than copyright generally.Nicola Lucchi, a professor of comparative law at Barcelona’s Pompeu Fabra University, warned that rewritten summaries could drain publishers’ traffic and advertising revenue while escaping that protection.“The small Hungarian publisher in this case seems unlikely to obtain much relief,” he said.Lucchi challenged Szpunar’s rejection of an argument he developed with fellow scholar Tim Dornis that AI-generated content competing with works used to train it could undermine their normal commercial exploitation. Szpunar treated that displacement as ordinary competition, a distinction Lucchi disputed.He questioned training opt-outs that could cost publishers search visibility and the opinion’s inconsistent comparisons with human learning and memory. He welcomed easier proof of article use but favored direct obligations on platforms over proving each infringement, and highlighted possible national compensation schemes.Szpunar nevertheless examined training extensively. Copies made for training could generally qualify for Europe’s exception for automated text analysis, provided access was lawful and rights holders had not validly opted out. Fetching articles for specific answers served a different purpose, and those technical copies might instead qualify for an exception for temporary copying, depending on access and the resulting answer.Google welcomed the training analysis, calling the text-analysis exemptions vital to European competitiveness and AI development.“Gemini learns linguistic patterns to create original outputs rather than replicating content, supported by extensive publisher controls that give rightsholders clear choice and the ability to opt out,” a spokesperson said.Angela Mills Wade, executive director of the European Publishers Council, welcomed the rejection of automatic consent from freely accessible journalism. She emphasized enforcing access restrictions and website rights reservations without losing search visibility. But she questioned using an exception dating to 2001 to justify competing AI answers without a license, backing negotiated deals that preserved publishers’ bargaining power.“Europe’s commitment to journalism must be reflected in rights that work in practice,” she said.João Pedro Quintais, an associate professor of information law at the University of Amsterdam, highlighted the demanding threshold for replacing an article and the safeguards expected of providers. On overseas training, he said: “The AG is skeptical that downstream EU market effects alone are sufficient, and suggests that the legislature should provide a clearer solution.”Péter Mezei, a professor of law at the University of Szeged, cautioned against treating the opinion as an answer to every AI copyright question, given the narrower protection afforded to press publishers. He highlighted Szpunar’s skepticism that reproduced text proved a model stored copies of protected works, and stressed that a training exception did not authorize later uses. Pointing to two further pending Gemini referrals, he said: “These are only the first steps toward clarifying the concerns at hand.”Like Company did not respond to a request for comment.The opinion is advice, not an appealable judgment. The EU judges must now issue their ruling, which the Budapest court will apply to resolve the dispute.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads