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When the Polish Government Turns the Cat Around by Its Tail

When the Polish Government Turns the Cat Around by Its Tail

Cross-posted from C4C’s LinkedIn page – see the original article

Note: Trying to turn a cat around by its tail is a typical Polish expression (Odwracać kota ogonem) that refers to the gentle art of presenting facts in a false or distorted light.

On 15 February, the Polish government published its DCDSM transposition proposal (draft actexplanatory memorandum). The text is open to comments for 14 days after its publication date.

C4C is concerned about the non-compliance of the Polish implementation approach regarding:

  1. Text and Data Mining (TDM) and generative AI; and,
  2. the use of works for educational and scientific purposes.

In this context, we want to share our draft comments below early on to help raise broader awareness about these two worrying elements.

1) TDM and generative AI

The Polish implementation approach considers that the training of generative AI does not fall within the scope of the DCDSM TDM provisions (Articles 3 and 4). It introduces a carveout to exclude the application of Articles 3 and 4 to generative AI models. To justify this, it claims in its explanatory memorandum that the effects of generative AI could not have been foreseen at the time of the Directive’s adoption in 2019.

C4C believes that excluding from the scope of the TDM provision the reproductions made in the context of training generative AI models would clearly result in a non-compliant implementation.

Defined in Article 2(2) as “any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes, but is not limited to, patterns, trends and correlations”, the term must be considered as an autonomous concept of EU law that cannot be modified by Member States.

The argument raised in the explanatory memorandum that “it seems fair to assume that this type of permitted use was not conceived for artificial intelligence,” is incorrect, as evidenced by European Commissioner Breton’s acknowledgement, in response to a Parliamentary question, that the DCDSM “introduces exceptions covering text and data mining (TDM) that are relevant in the AI context” and that “these exceptions provide balance between the protection of rightholders including artists and the facilitation of TDM, including by AI developers.”

Moreover, TDM is about mining, rather than the outcomes of the process, and Artificial Intelligence was already a reality in the fringes of the DCDSM discussions, albeit mostly at the business-to-business level.

Paragraph (13a) of the Council’s agreed negotiating mandate of 25 May 2018 (9134/18) stresses that “text and data mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies”, leading it at that stage of the negotiations to ask for the introduction of an optional exception (Article 3a) for enabling public and private entities to use mining techniques to access data which are lawfully accessible (for instance when they are freely available to the public online)”.

Finally, the recently adopted AI Act explicitly confirms the interplay with the DCDSM, and more specifically with its TDM provisions.

C4C moreover considers the arguments to be additionally flawed at various levels:

  1. Technology-neutral framework of the Directive: The DCDSM is designed with a technology-neutral framework to ensure its applicability over a wide range of digital activities and technologies, including those not explicitly foreseen at the time of its drafting. This approach reflects an understanding that the digital environment is rapidly evolving, and laws must be adaptable to future developments.
  2. Principle of dynamic interpretation in line with evolving technologies: The Directive’s interpretation should evolve alongside technological advancements to fulfil its overarching goals, which include protecting copyright holders in the digital age and promoting a balanced and fair digital market. The dynamic interpretation of legal texts allows for the inclusion of technologies such as generative AI, which, although not explicitly mentioned, fall within the scope of activities impacting copyright and the sharing of digital content.
  3. Purpose and objectives of the Directive: The primary objectives of the Directive include harmonising and modernising the rules applying to copyright and fostering a healthy digital environment for innovation and creativity. Generative AI falls within the ambit of the Directive, aligning with its purpose of adapting copyright rules to the digital age.
  4. Legislative intent and evolving digital landscape: Lastly, considering the legislative intent behind the Directive to enable a digital single market and the evolving nature of the digital landscape, it is reasonable to assert that the Directive’s provisions apply to generative AI. The law must be responsive to changes in how content is created, distributed, and consumed, to ensure that copyright protections remain effective and relevant.
  5. Interpretative flexibility of EU law: EU law is subject to interpretation by the Court of Justice of the European Union (CJEU), which has a history of interpreting directives in a manner that takes into account the evolving digital landscape and the objectives of the EU legislation. This means that even if a specific use case was not explicitly considered during the legislative process, it does not preclude its inclusion under the scope of the directive if such inclusion serves the directive’s objectives.

2) The use of works for educational and scientific purposes

The transposition proposal introduces a new restriction on using works for educational and scientific purposes, limiting it to 20% of the volume, which is also not in line with the exception as set out in the DCDSM and hence constitutes an infringement.

Featured image created with DALL·E