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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.

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EMFA: The Looming Spectre of Disinformation and Hate Speech

EMFA: The Looming Spectre of Disinformation and Hate Speech

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

EU’s Media Freedom Act: A Closer Look

In 2022, the European Commission introduced the European Media Freedom Act (EMFA) with the goal of enhancing media diversity in the EU. It aimed to increase transparency around who owns media outlets and protect journalists from government surveillance and spyware. However, by the time an agreement was reached on 15 December 2023, there were serious doubts about the commitment to these goals. The agreed terms, particularly around content moderation in Article 17, could undermine public trust in media and affect the quality of information. Large online platforms are now required to notify media organizations before deleting or restricting their content, giving them only 24 hours to respond.

Forced Content Hosting: Potential Issues Ahead

Article 17 of the EMFA introduces a rule that prevents platforms from quickly removing media content, even if it violates community guidelines. This “must carry” rule limits platforms like X or Meta from taking down content that could spread misinformation or harm public discourse. This decision could make it harder to combat disinformation and protect vulnerable groups from targeted hate speech. As also pointed out by Christoph Schmon from the Electronic Frontier Foundation (EFF), “It also poses important concerns about government interference in editorial decisions”.

Negotiations Between Platforms and Media

The EMFA’s approach could lead to negotiations between major media companies and platforms about which content stays up. Only media outlets that meet certain criteria will have this special status. Considering the other bargaining situations going on in parallel between platforms and media organizations (e.g. in the framework of the press publishers’ right under Article 15 of the EU Copyright in the Digital Single Market Directive and in light of the provisions related to commercial text and data mining under Article 4 of the same Directive), this situation might favour larger media organisations, potentially at the cost of smaller voices.

What’s Next?

Despite the criticism, the EU has included measures to protect media independence from political influence. The agreement has been praised by some as a victory for media freedom, but C4C is concerned about how it will be implemented. The focus now shifts to finalising the legislative process and how the EMFA will be enforced. Thankfully, civil society observers such as EFF, European Digital Rights and the Civil Liberties Union for Europe are watching closely, ready to hold the EU accountable to ensure the act supports a diverse and free media landscape without compromising public safety or the integrity of online spaces. It is just a shame that we have ended up in this position, where yet again users’ concerns are pushed to the end of the queue.

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Artists Come In Various Shapes When AI Is at Play

Artists Come In Various Shapes When AI Is at Play

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


Recently, the U.S. Copyright Office (USCO) launched an inquiry on AI and copyright.

Many submissions amongst the over 10,000 published on the USCO website came from artists. While some expressed concern and misgivings, it is worth noting that not all artists see AI as a problem, quite the contrary.

The quotes we have identified below from various artists’ comments actually provide a multifaceted perspective on the intersection of AI and creative expression.


These diverse insights from creators across the spectrum serve as a crucial reminder of the complexity and nuance required in discussions about copyright law, AI-generated content, and the rights of artists in the digital age.

Input: Views on Training Data

Over 80 artists warn in a joint submission against restrictive copyright interpretations that could hinder the training of generative AI and argue for the necessity of AI to access a wide range of data, including public web content, to develop and perform effectively.

On the subject of training data for AI, Mark Duncan, a video game designer, and Trent Sterling, an independent game developer, both emphasize the importance of access to a broad spectrum of creative works. This access is essential for both human and AI-driven creative processes, suggesting a parallel between historical artistic evolution and the development of AI models.

Tim Boucher makes a similar argument, pointing out that “the importance of being able to mutually build on human knowledge and creativity for the betterment of the lives of all peoples”.

Outputs: Authorship and Copyright Infringements

The joint submission by 80 artists calls for the USCO to study and understand the creative process with generative AI for better clarity on the copyrightability of AI-generated works. As regards copyright infringements, while the existing copyright law should continue to tackle direct infringements, it should also provide clarity for legitimate re-use and building upon existing works. Misuse of AI for infringing outputs should be addressed without restricting the technology itself.

Elisa Shupe, a published author and disabled veteran, passionately defends the authenticity and personal connection that led to the publication of her AI-assisted book, confronting the narrative that AI diminishes the value of human-authored works. Her experience underscores the importance of recognizing the human element in AI-assisted creations.This view is also put forward by Tim Boucher, who points out that “each prompt,each image result,and each subsequent iteration along the way constitute in a very real sense the equivalent of a brushstroke within the context of AI art”.

Matthew Wright, an artist who incorporates AI into his creative workflow, advocates for the extension of copyright protections to AI-assisted works that undergo significant alterations by the artist. His viewpoint echoes the historical acceptance of derivative and transformative art within the legal framework, as he refers to “Merz, Collage, Dadaism, and other surrealist and expressionist works”.

Pat Tremblay and Michael Summey, both artists in their respective fields, challenge the traditional perceptions of copyright infringement in the context of AI. They draw parallels between AI art and recognized art movements such as pop-art that recontextualize cultural elements, questioning the potential overreach of copyright law into the realm of personal use and the absurdities that could arise from hasty legislative action.

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C4C’s Perspective on the EU AI Act: Copyright in Real Life is Messy and AI Discussions Are Not Helping

C4C’s Perspective on the EU AI Act: Copyright in Real Life is Messy and AI Discussions Are Not Helping

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






The trilogue black box effect combined with an end of term

The AI Act has reached that black box moment referred to as the trilogue, where each of the three EU institutions enter a room to make a deal. Two elements might affect this process, and not necessarily in a way that allows for the outcome to be reasonable and proportionate:

  • One, as this European Commission and European Parliament’s tenures are coming to an end, there is a bigger risk a deal is made at all cost. Add to that the element of the EU loving to “set the standard” for the rest of the world (whatever that could possibly mean) and you sense that the AI Act might be negotiated with a misplaced sense of urgency.
  • Two, the creative industries are voicing their concerns more and more about the possible threats AI could pose to their current business model, a situation which especially in Europe tends to generate knee jerk reactions by policy makers at the expense of careful assessments.

The copyright creep into the AI Act discussion

The AI Act as initially proposed did not comprise any copyright references. And this is absolutely justified as the Copyright Directive in the Digital Single Market had just been adopted and comprised two provisions covering text and data mining (TDM) – Article 3 covering research organisations and cultural heritage institutions and Article 4 covering all other uses. TDM is defined in a sufficiently broad manner to cover many known machine learning processes (“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”).

This was confirmed in an answer by Commissioner Thierry Breton to a parliamentary question from MEP Emmanuel Maurel, where he stated that the Copyright Directive applied to AI and that hence “the creation of art works by AI does not deserve specific legislative intervention”.  

Nobody know what is copyrighted and what isn’t: do not ask AI to deliver transparency on an untransparent status

So what was added by the European Parliament?

Under Article 28b, the current Parliament position requires that providers of generative AI models should document and share a “sufficiently detailed” summary of the use of training data protected under copyright law.

Simple no? Actually, absolutely not. No one knows what is copyrighted or not. Copyright is not vested upon a work through a deliberate act like a registration: it is bestowed on any creation that meets the requirements of copyright laws, and those requirements may vary from one country to another. One of those criteria is originality, a threshold that has led to many lengthy court cases and that is in no shape or form something a web crawler or automated tool could identify.

Of course, when you feed the whole Harry Potter series in an AI training model, you probably know it is copyrighted. But what about a drawing made by a child and posted proudly by one of their parents on social media, or a poem they wrote at school and got that perfect grade on? That is likely to be worthy of copyright too. Or not. But we just don’t know.

There is no register of copyrighted works and hence there is no way to list separately which of the elements in your data set are copyrighted. For this reason, any transparency obligation that creates a subset requirement for copyrighted works is a recipe for compliance failure through no fault of the entity trying to comply, and hence for legal uncertainty.

Or as aptly stated by the COMMUNIA Association: “AI developers also should not be expected to know which of their training materials are copyrightable. Introducing a specific requirement for this category of data adds legal complexity that is not needed nor advisable”.

And that is a very different compliance requirement to one that would try to enable the reservation right given to rightholders under the commercial TDM provision of Article 4 of the Copyright Directive, as explained below.

Generative AI does not necessarily use all the data in a data set to train a model or generate something

Machine learning is about collecting huge data sets, cleaning them up, chopping them in small parts referred to as tokens, splitting them into training and test data, and allowing them to be extracted in response to a prompt. Depending on the prompt, different tokens can be relevant while others might be completely disregarded.

When it comes to generative AI, as explained by Dr Andres Guadamuz, Reader in Intellectual Property Law at the University of Sussex, “the most important takeaway from the perspective of a legal analysis is that a generative AI does not reproduce the inputs exactly, even if you ask for a specific one” and “style and a ‘look and feel’ are not copyrightable” as “copyright protects the expression of an idea, not the idea itself”.

For those that think they hold copyright, a mechanism exists on paper: maybe it should be made to function in reality

The Copyright Directive has created a reservation right (also referred to as opt-out) for rightholders wishing to express that their content should not be used in commercial TDM activities.

The conclusion to this debate has been perfectly summarised by Assistant Professor João Pedro Quintais from the Institute for Information Law (IViR): “the type of transparency that is useful is one that allows copyright holders to access datasets in order to exercise their opt-outs. It is unclear how the present text would enable that, since it imposes a requirement that cannot  be met in practice”.

More practically: remove copyright references in the AI Act so that a horizontal measure does not get polluted by sector specific measures and start working on a practical implementation of the TDM measures in the Copyright Directive, with the input of all relevant stakeholders.


C4C’s perspective on Article 17 of the European Media Freedom Act (EMFA)

The Coalition for Creativity (C4C) is concerned about the developments around Article 17 in the European Media Freedom Act (EMFA). This provision, initially introduced as an unwarranted media privilege by the European Commission in the EMFA, is turning into a fully-fledged media exemption.

Our take on what policymakers should do: reject Article 17, this provision cannot be salvaged or improved and should hence be deleted

Hence, we are pleased to see that Renew Europe MEPs Monica Semedo (Luxembourg) and Anna Julia Donath (Hungary) tabled an amendment to delete Article 17 EMFA (see AM 967) to the draft EP Culture and Education (CULT) Committee EMFA report by Rapporteur by MEP Sabine Verheyen. They consider Article 17 EMFA should be deleted for numerous reasons, and highlight 3 of them:

  1. equality of freedom of speech
  2. harmonisation of horizontal rules
  3. the issue of media declaration

Check C4C’s video above and infographic below on what’s wrong with Article 17 EMFA.

C4C considers that the DSA and the P2B Regulation suffice and believes that Article 17 raise multiple questions to solve a non-existent problem:

There should be no privilege: (1) for certain actors, as making some actors more important means the speech of others is automatically of less value; (2) for media, as this creates an easily exploitable loophole in the fight against disinformation; (3) for media on VLOPs as this creates a provision resting on the wrong scope at both ends; and (4) as such a privilege is extremely difficult to combine with the multiple other obligations platforms have.

The slippery slope from media privilege to media exemption/must-carry is a path that has already been clearly condemned by EU legislators in the recent DSA debates.

This concern is confirmed by a recent FT op-ed from Anika Collier Navaroli, a practitioner fellow at Stanford University’s Digital Civil Society Lab and a former senior content moderator at Twitter, on how ‘disinformation dangers lurk in the EU’s media freedom act’. She cautions that “the DSA’s attempt to address systemic risks such as disinformation may be undermined before they have a chance to work.”

More resources:

What’s Wrong with Article 17 EMFA – Infographic

Download imagePDF


C4C’s Comments on the EC’s Exploratory Consultation on the Future of the Electronic Communications Sector and its Infrastructure

At the end of February 2023, the European Commission launched a highly anticipated exploratory public consultation on “the future of the electronic communications sector and its infrastructure” that notably looks into the fair share / network fees debate – deadline: 19 May, midnight Brussels time (CEST).

C4C’s response to this consultation can be found here and below. Our answers are limited to ‘Section 4. Fair contribution by all digital players’ (see p. 36ff). Similar views have been expressed by various other stakeholders, including civil society.

Why it matters: This discussion, which has been mainly framed as Big Tech vs Big Telco, has a broader impact, as it risks negatively impacting net neutrality and turn Internet users, and other stakeholders, like startups, into collateral damage. For example, any cost increases for content providers are likely to be passed on to users, and any cost increases for major cloud providers will be passed on to their customers.


C4C Co-Signs Open Letter on the European Media Freedom Act (EMFA) to the European Parliament

Along with over 40 organisations, C4C co-signed an open letter on the European Media Freedom Act (EMFA) addressed to the European Parliament.

These signatories call on the Members of the European Parliament involved in the debate to ensure that the EMFA will fulfill its potential and become a strong regulation establishing harmonised legal safeguards across Europe.

Media freedom and pluralism is the precondition of stable democracy and the rule of law.

What are some of the issues at stake?

  • Many journalists throughout the EU find themselves in increasingly captured media markets, where independent voices are sidelined due to economic pressure;
  • Journalists and media outlets struggle for financial viability;
  • Critical media outlets are often vilified by politicians.;
  • Access to financial resources is limited; and,
  • Politically influenced media takeovers create an imbalanced media system.

The EMFA should address these issues and protect free media by outlining European standards on:

  • freedom from editorial interference and illegal surveillance;
  • guaranteeing media pluralism;
  • providing greater #transparency on ownership and state financing;
  • ending the abuse of state funds to create clientelist media;
  • protecting the independence of public service media and the independence of national regulatory authorities; and,
  • ensuring there is an economic environment in which independent journalism can flourish.

C4C’s Comments on the European Media Freedom Act (EMFA)

In this position paper, C4C expresses its believe that Articles 17 and 18 of the European Media Freedom Act (EMFA) cannot be salvaged or improved and should hence be deleted for the following reasons:

  1. The DSA and the P2B Regulation suffice and there is no need for a specific media content
    moderation privilege: the DSA ink is barely dry, yet another unnecessary layer of complexity
    could get added with Article 17 of the EMFA and creating a narrower right applicable to less
    platforms than the P2B Regulation makes no sense.
  2. Articles 17 and 18 of the EMFA raise multiple questions to solve a non-existent problem.
    There should be no privilege: (1) for certain actors, as making some actors more important
    means the speech of others is automatically of less value; (2) for media, as this creates an
    easily exploitable loophole in the fight against disinformation; (3) for media on VLOPs as this
    creates a provision resting on the wrong scope at both ends; and (4) as such a privilege is
    extremely difficult to combine with the multiple other obligations platforms have.
  3. The introduction of these articles in the EMFA brings us back on the slippery slope from
    media privilege to media exemption
    /must-carry, a path that has already been clearly
    condemned by EU legislators.

Similar views have been expressed by a group of civil society organisations.

C4C shared this position in its response to the European Commission’s feedback opportunity on the EMFA proposal.


C4C Statement on the European Media Freedom Act (EMFA)

Following the presentation of the European Media Freedom Act by the European Commission on 13 September, the Coalition for Creativity (C4C) would like to express its concerns about a ‘media exemption’ popping-up again and the lack of proper transparency rules for the media industry.

Come-Back of the ‘Media Exemption’ (Article 17)

We believe that the treatment of media content by online platforms is a complex and sensitive issue that merits a proper debate and a thorough evaluation. Despite the clear rejection of the strong calls for a media exemption during the DSA and DMA debates, this demand is making its come-back through the EMFA, an instrument that clearly identifies media capture as a problem the EU is not spared  of. This risks having a detrimental impact on access to information and media pluralism, while possibly jeopardising the EU’s efforts against disinformation.

Ms Caroline De Cock, C4C Coordinator, said:

“Attributing new privileges to media organisations without awaiting the implementation and impact of the DSA provisions, would at the very best be premature and ill-thought, and at the very worst could open Pandora’s box of issues related to the identification of which media outlets would benefit from it as well as possible claims from other actors to benefit from similar privileges. One would hope all users can benefit from due process in content moderation.”

Missing Element: Strong Transparency

The proposal appears to be very light in terms of ensuring media ownership transparency, despite this being one of the crucial elements that civil society stakeholders have been calling for.

Ms Caroline De Cock, C4C Coordinator, said:

“Brussels has been big on transparency, so the failure to put forward a strong framework to unravel the financial streams in the media industry is disappointing. EU policymakers need to urgently facilitate the public scrutiny of these money flow seeing the media’s role as watchdog of democracy and in shaping the public opinion.”


C4C Joins Opposition Against Revised US Journalism Competition and Preservation Act

On 2 September, C4C joined over 20 organisations in opposing the revised US Journalism Competition and Preservation Act (JCPA) and warning the US Congress against adopting this Act. The battles fought over issues such as the ‘link tax’ during the negotiations on the EU Directive on Copyright in the Digital Single Market (DCDSM) are popping up again in the context of the JCPA in the US. Just as during the DCDSM discussions we strongly oppose any attempts to curtail freedom of expression and access to information, and continue to believe that these misguided approaches fail to benefit and support smaller media outlets. See EFF’s campaign again the US link tax.

The full text of the letter can be found here and below.

Other relevant resources: