This article delves into the EU’s groundbreaking rules for general-purpose AI (GPAI) models, as outlined in the politically agreed-upon AI Act on December 8th. It scrutinizes key questions, including whether this approach deviates from the original risk-based proposal, navigates the complexities of risk management in foundational models, and grapples with the uncertainties in benchmarking methods.

On November 8th, 2023, in the midst of the stalled inter-institutional negotiations between the Council of the EU and the European Parliament (EP) on the regulation of foundation models in relation to the future AI law, the Organisation for Economic Co-operation and Development (OECD) announced that it had updated its definition of AI systems.

On October 13th, 2023, the European Commission launched a stakeholder survey on the eleven draft guiding principles for Generative AI (GAI) and other advanced AI systems. This initiative comes a few days after the 8th annual meeting of the Internet Governance Forum, organised by the United Nations.

Drawing on intense criticism from online publishers across the European Union (EU) against Generative AI (GAI), the present article aims to highlight the highly debated copyright issue of data collection for Generative AI training. Three questions are therefore addressed: To what extent is scraping data for GAI training considered to be a copyright issue; How Data scraping and data mining are regulated under EU Law and; How the future AI Act intends to deal with the use of training data.

The present contribution provides an overview of two of the most pressing legal questions concerning IP law, authorship of AI-generated works and copyright infringement. It does so through the lens of US copyright law, since US courts have dealt with the highest number of AI art cases, and many AI systems manufacturers and suppliers are based in the US.

The adoption of the negotiating position by the European Parliament sets the stage for the trilogues between the EU institutions, while the European Commission is pushing for the AI Act to be finalised by the end of 2023. The European Parliament’s position on this legislative file reflects its members’ fundamental desire to make the EU a leader in AI regulation and innovation.

On May 16th, 2023, the French data control agency – Commission Nationale de l’Informatique et des Libertés (CNIL) – published an action plan aimed at ensuring respect for the privacy of people in relation to Artificial Intelligence (AI) systems and more specifically generative AI (e.g. Midjourney and ChatGPT from the company OpenAI). This action plan follows the 2017 CNIL’s first global approach on these new tools.  

On February 21th, 2023, the United States Copyright Office (USCO) cancelled the registration certificate previously issued to Ms. Kristina Kashtanova for the “comic book” entitled “Zarya of the Dawn”, considering that the images in the comic book are not the product of human authorship – since they were generated by an AI system – Midjourney – and were therefore not copyrightable.