Organisations from across the creative industries, together representing millions of rightsholders and creators, have issued a joint statement strongly criticising the code of practice that has been drafted to set out how AI companies should comply with the European Union’s AI Act.
The EU AI Act was passed last year and includes obligations for technology companies developing AI relating to how they should handle copyright and transparency, with provision for a code of practice to set out how those obligations would be met.
While the act itself was initially welcomed by the music industry, and the wider creative and copyright industries, a statement backed by a broad coalition of 38 organisations representing rightsholders and creators - including performers, songwriters, record labels, music publishers, translators, film and TV producers, photographers, newspaper and magazine publishers, writers and visual artists - now says that the latest and third draft of the code waters down the obligations to such an extent that it basically makes the AI Act useless.
“The EU's AI Act was meant to foster responsible AI while giving Europe’s creators and rightholders the tools to exercise and enforce their rights”, says Helen Smith, Executive Director of pan-European indie label trade group IMPALA. The current draft of the code “does neither” of those things, she insists, adding that as a result “we cannot support it”.
Echoing the creative industries’ statement, which is backed by IMPALA, Smith says, “we would rather have no code at all than to have this frankly inadmissible third draft”.
John Phelan, Director General of ICMP, the global trade group for music publishers that has also endorsed the statement, says that - not only was the EU AI Act “one of the first AI specific laws in the world” - but it was “incredibly hard won”.
One of the key principles of the act is that AI companies operating in Europe must comply with European copyright law, and must be transparent about what content has been used when training their AI models. That transparency is vital to assess if they are complying with copyright rules.
Those elements of the act were initially welcomed by the music industry, but, ICMP’s Phelan now says, “laws are only as good as their enforcement”. That was meant to be achieved, he goes on, by the new EU AI Office developing “meaningful enforcement tools”, beginning with this code of practice. But the current code does not achieve that objective.
“As things stand, our industry cannot support the EU’s draft code of practice for AI companies”, continues Phelan. “It needs rigorous reworking in the short time remaining for the new AI Office to have our industry’s support. The clock is ticking”.
Mounting frustrations around the AI code of practice were discussed earlier this week at the Creators Conference organised by the European Composers & Songwriters Alliance in Brussels. Dominick Luquer, Secretary General at the International Federation Of Actors, told the event that “we have seen three draft versions” of the code, “each worse than the previous one”.
As a result, he said, creators and rightsholders were now “basically being told to accept what few things the tech industry intends to tolerate, which is close to nothing”. Lobbyists for the tech sector, he added, have repeatedly cited “trade secrets, NDAs, technical infeasibilities, excessive costs and excessive burdens” in a bid to convince the EU AI Office to significantly reduce their obligations under the AI Act.
It seems that the AI companies “have managed to convince the drafting committee not to meddle with their practices”, he said, so that they only have to undertake “reasonable efforts to behave”. As a result, the code “creates dangerous precedents that undermine” European laws on copyright and related rights, while “failing to provide legal certainty for rightholders”.
In a recent Linkedin post, Ioan Kaes, the General Secretary of AEPO-ARTIS, also criticised the process through which the code has been developed, calling it “disorganised” and “confusing”. The result “is anything but a code of practice”, he continued, but rather, simply, “an open invitation for AI providers to give thought to making reasonable efforts to maybe take into account certain considerations”.
“The code of practice of the Order Of Bavarian Organ Grinders probably has more actual commitments than this one”, he added, scathingly.
The full statement from the consortium of trade groups sets out specific grievances with the current draft of the code of practice.
As Luquer and Kaes noted, in several places, the code now says that AI companies need only make “reasonable efforts” to ensure compliance with EU copyright law. It also “waters down” the obligation of AI companies “to undertake proper due diligence to ensure that the third-party datasets they use to train their models do not infringe copyright”.
Under EU law, AI companies can utilise a text and data mining copyright exception to make use of existing works when training their models without getting permission from relevant copyright owners, except where copyright owners have formally reserved their rights. The code of practice was expected to deal with how AI companies respect those rights reservations.
But, says the statement, “the third draft removes entirely the requirements to demonstrate transparency” regarding “compliance with the right reservation mechanisms”. As a result, AI companies “are not required to disclose whether or how they comply with the rights reservations expressed by authors, performers and other rightsholders”.
On other transparency matters, the statement says the code “must also be coupled with an effective template for the ‘sufficiently detailed summary of the content used for training’, enabling authors, performers and other rightsholders to effectively exercise or enforce their rights”.
And, crucially, AI companies should not be allowed to “misuse trade secret law to hide infringements” in a way that would “render the obligation meaningless and obstruct the fundamental right of rightsholders to exercise and enforce their rights”.