Generative AI and copyright law: What’s the future for IP?

In a guidance document recently released by the U.S. Copyright Office, the agency attempts to clarify its stance on AI-generated works and their eligibility for copyright protection.

The guidance emphasizes the importance of human authorship and outlines how the office evaluates works containing AI-generated content to determine whether the AI contributions are the result of “mechanical reproduction” or an author’s “own original mental conception.”

The Copyright Office will not register works whose traditional elements of authorship are produced solely by a machine, such as when an AI technology receives a prompt from a human and generates complex written, visual or musical works in response. According to the Office, in these cases, the AI technology, rather than the human user, determines the expressive elements of the work, making the generated material ineligible for copyright protection.

However, a work containing AI-generated material may still be eligible for copyright protection if it also contains sufficient human authorship. Examples include a human selecting or arranging AI-generated content in a creative way or an artist modifying AI-generated material to the extent that the modifications meet the standard for copyright protection. In these cases, copyright protection only applies to the human-authored aspects of the work.

We are seeing the emergence of competing interests come to light between authors, AI companies and the general public.

The guidance also outlines the responsibilities of copyright applicants to disclose the use of AI-generated content in their works, providing instructions on submitting applications for works containing AI-generated material and advising on correcting a previously submitted or pending application. The Copyright Office emphasizes the need for accurate information regarding AI-generated content in submitted works and the potential consequences of failing to provide such information.

In light of the Office’s guidance, AI companies are updating their policies. OpenAI’s Terms of Use grant users “all right, title and interest in and to Output,” which it defines as content “generated and returned by the Services based on the [user] Input.” However, OpenAI restricts its users from “represent[ing] that output from the Services was human-generated when it is not,” suggesting that ChatGPT’s users must comply with the Copyright Office’s requirement of honest disclosure of AI use.

Generative AI and copyright law: What’s the future for IP? by Walter Thompson originally published on TechCrunch

Copyright law is going to get real interesting, y’all

As millions of people are playing with AI-powered image-generation tools like DALL-E and Midjourney, new works of art are generated by the billions. Many of them are curiosities, some of them are legitimately incredible works of art that I wouldn’t hesitate to stick on my wall. In fact, I did; I have a Meural digital art display, and it’s currently playing a rotation of some of the most interesting works of art Midjourney has generated for me.

The picture above made me think, though; the prompt for it is “Lovers, in the style of Banksy,” which is remarkably close, stylistically, as a lot of other Banksy works — it even put the frame on it for me, unprompted. With a small amount of manual retouching (or with a lot more experimentation), I am confident I could get Midjourney to generate a work that anybody would recognize as “a Banksy.”

The challenge becomes complex, and I’m going to be keeping a very close eye on the legal universe to see how this is going to evolve over time. There are a few obvious issues here, and a few less obvious ones, but a few of the curiosities I have right out of the gate are related to copyright and plagiarism.

Are we all just monkeys pressing shutter buttons?

If you are using a free or a trial account for Midjourney, you are granted a Commons Noncommercial 4.0 Attribution International License, which means that you’d be able to use the images as long as you don’t sell them or make money off them, and as long as you give credit (“attribution”) to Midjourney. If you pay for your account, the company says “You basically own all Assets you create using Midjourney’s image generation and chat services.”

In its terms of service, the company further specifies that you grant Midjourney a “perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute text, and image prompts you input into the Services, or Assets produced by the service at your direction.” In other words, even if you “create” a new piece of art, and you have all rights to use the images the service creates, Midjourney also keeps its own license to use your works, including sublicensing.

The other quirk is that “Midjourney is an open community that allows others to use and remix your images and prompts whenever they are posted in a public setting.” Which means that even if you spend a bunch of time creating very finely tuned prompts of what you created, another user can use your image as the base for their own experimentation, and in theory create derivative works that are extremely similar to “yours.”

Now, imagine a world where you generate some really cool art. You develop a unique style that “only you” are able to create using Midjourney’s tools, and you decide to sell them, whether as NFTs, prints or what have you. Because of the license agreement you have with Midjourney, the company could start selling or licensing “your” artworks. It probably won’t; that would be pretty bad business. But another user could further evolve “your” style and images and start selling their own artworks based on those.

There’s another edge case as well; in theory, with the same prompts and the random seed that’s used for generating the images, you could end up with someone else generating the same, or a very similar, image as what you created. They could start selling that image, and we end up with a really curious situation where two people genuinely created an image that they thought was their own original but accidentally end up with extremely visually similar graphics.

Then there’s the issue of plagiarism. At the top of this article, I “created” something that’s recognizable as a “Banksy.” That artist in particular is interesting because his identity is unknown, and he is a fervent anti-capitalist, which means he’s relatively unlikely to (a) come out of hiding and (b) sue me for “creating a Banksy.” Besides, there are a lot more fake Banksys out there that were created with stencils and spray paint that would be more sensible to go after. The point remains, however; there are a fair few contemporary artists out there with very distinctive styles, and over time, the AI will learn to emulate many of them. These styles are not copyrighted, but they could very well be trademarked in one way or another. And even if it wouldn’t be “illegal” to plagiarize the style of another artist, I can totally see how an artist with a distinctive style would be miffed if some nerd such as myself suddenly started selling NFTs in their style.

One example; I challenged Midjourney to create “a colorful graffiti mural of Batman and Robin in Beautiful, Downtown, Oakland, California,” and ended up with this. Now I’m not familiar enough with individual graffiti styles to recognize this as the potential work of a specific artist, but it’s not unthinkable that I’ve accidentally plagiarized someone with that prompt.

It becomes a question of who created a certain work of art. A few years ago there was a curious case of a monkey taking selfies with a photographer’s camera. Personally — and even if it is hard for the monkey to represent itself in court to defend its rights — I think that a monkey pressing the shutter button and having creative input into the way the image looks deserves its own copyright. The courts went the other way after a long and drawn-out process.

It leaves me to wonder; are we all just monkeys pressing shutter buttons, or do we “own” the copyright due to the amount of our own creativity we add to the process, even in a situation where very few of us — including Midjourney itself — are able to explain the exact process of how a particular image came to be generated.

I asked Midjourney to generate an image with the prompt “a monkey taking a photo with an SLR camera, photo-realistic, hyper-detailed –ar 16:9 –s 1250.” It is almost as if the AI knew I was trying to make a point — in this case, it even signed its work, albeit illegibly. Image Credits: Haje Kamps (opens in a new window) / Midjourney (opens in a new window)

An AI for art: Copyright considerations for artificial intelligence

Artificial intelligence is driving the information revolution and its presence is increasingly commonplace — for example, in smart speakers, self-driving cars, social media monitoring and healthcare technology, to name but a few.

The U.K. government recently released its response to its consultation on “Artificial Intelligence and Intellectual Property: copyright and patents.” In summary, the position (for now) is that the U.K. law will remain unchanged with respect to copyright protection in computer-generated works, as will the law as it relates to AI authorship for copyright works and AI inventorship for patents.

Numerous complex questions remain for regulators, lawyers, programmers, creatives and inventors, particularly in light of the rapid, continual rise of AI. This column addresses a small but significant aspect of this — how AI should be considered in the context of copyright protection and authorship under U.K. law as it presently stands.


We briefly set out the differences between AI inventorship in the context of patents, and AI authorship in copyright law. We then consider how the U.K. Court might approach the issue of AI authorship and joint authorship and conclude with some useful considerations for AI programmers and authors to have in mind.

AI inventorship versus AI authorship

Pursuant to s.13 of the Patents Act 1977 (“PA”), U.K. patent applications must have human applicants. Furthermore, only the deviser of the invention can be named as an inventor (s.7 PA). These two requirements were examined by the U.K. Intellectual Property Office, the U.K. High Court and the U.K. Court of the Appeal in the prominent series of Stephen Thaler trials, where, most recently, the Court of Appeal upheld the rejection of a patent application identifying an AI (DABUS) as the inventor, ruling that a human inventor is required.

The EPO Board of Appeal also recently published their written decision (J 8/20) on this question, following the U.K. Court’s decision, as did the Full Court of the Federal Court of Australia, who reversed the decision of the lower court and held that DABUS cannot be recognized as an inventor under Australian patent law. Appeals to the U.K. Supreme Court and the United States are ongoing, and an appeal is anticipated in Australia.

The Copyright, Designs and Patents Act 1988 (“CDPA”) provides a statutory framework for determining authorship of copyright works. For literary, dramatic, musical and artistic works (so called “LDMA” works), the author is the writer, composer and artist, respectively (s.9 CDPA). For sound recordings it is the producer (s.9(2)(aa) CDPA) and for films, it is the producer and principal director (s.9(2)(b) CDPA)). Films will be a work of joint authorship unless the producer and principal director are the same person.

The UK wants to boost AI development by removing data mining hurdles

The U.K. is planning to tweak an existing law to allow text and data mining “for any purpose,” in a move that’s designed to boost artificial intelligence (AI) development across the country.

The announcement constitutes part of a broader strategy to “level up” AI and transform the U.K. into what it calls a “global AI superpower” — and part of this will involve reassessing existing intellectual property (IP) laws. Following a two-month consultation period where stakeholders from across the industrial spectrum were asked for input, including rightsholders, academics, lawyers, trade organisations and businesses, the U.K.’s Intellectual Property Office (IPO) today published its response and confirmed what will (and won’t) be changing moving forward.


Text and data mining (TDM) is pivotal to the development of new AI applications, allowing researchers and businesses to copy and harness disparate datasets to train their algorithms. However, gaining access to enough relevant data has inherent challenges — the data is often owned by third-parties that may only want to make data available under a commercial license, if they make it available at all.

Back in 2014, the U.K. amended its existing TDM regulations — which are related to the broader Copyright, Designs and Patents Act (1988) — to include an “exception” allowing AI researchers to leverage third-party data for non-commercial purposes without incurring major costs. However, this still imposed significant limitations on how the data could be used and discouraged businesses from investing in AI development. Moreover, it didn’t extend to database rights, which is distinct from works covered by traditional copyright law.

Today’s announcement essentially resolves this. The U.K. government is now planning to adopt a TDM exception that covers any purpose far beyond research and academia, with no opt-out for rightsholders. On top of that, it also includes provisions for database rights.

This runs contrary to the comparable European Union (EU) Directive on Copyright in the Digital Single Market, which offers a mandatory exception only for TDM in the scientific research domain. Indeed, rightsholders can opt-out their copyrighted work from commercial use cases, meaning they can still monetize TDM.

The U.K.’s proposed changes could serve as a significant component of its stated “levelling up” plans, given that access to AI training data is a major stumbling block for all but the largest companies. But more than that, it seems that the intention here is to lure AI companies to the U.K., knowing that they have more freedom to conduct text and data mining. This is particularly important in a U.K. that is now in direct competition with the EU following its exit from the bloc in 2020, as it acknowledges in today’s published response:

These changes make the most of the greater flexibilities following Brexit. They will help make the U.K. more competitive as a location for firms doing data mining.

The Brexit effect

This new copyright and database rights exception, which the government plans to enshrine in “suitable legislation” in due course, effectively moves the balance of power away from rightsholders and heavily toward businesses and other commercial entities. But the transition could have unintended consequences, according to some. Under the proposed new rules, the data-miner still has to acquire the data through lawful means, meaning that it has to be publicly available (e.g. as part of a subscription). So rightsholders who may previously have charged for TDM as part of a data-licensing model may instead withhold their data altogether, which could adversely impact AI development in the future.

“On the one hand this decision can be seen as an enabler for AI development, but on the other it may have the effect of encouraging copyright holders to place more restrictions on their content,” Richard Johnson, partner at European IP law firm Mewburn Ellis, told TechCrunch in a statement.

It’s worth noting that rightsholders will still have some rights themselves under the new rules, in terms of where they choose to publish their data or copyrighted works, and they can still charge for access to that data. They just “will no longer be able to charge for U.K. licences for TDM” specifically, and they won’t be able to enforce any kind of opt-out — any entity that legally accesses the data will be able to mine it.

Status quo

The U.K. government’s published response today is notable not only for what’s changing with text and data mining, but also for what isn’t changing. Central to the consultation was whether computer-generated works (CGWs) without a human author should continue to be protected under copyright law — the U.K. is actually one of the few countries that bestow copyright protection on CGWs, with a 50-year protection period in place (this compares to 70 years for human-generated works).

While the U.K. sought input on whether the protection period should be altered or scrapped altogether, it ultimately decided not to change anything, noting that the existing protections around CGWs were not “harmful” and that the use of AI is still in its relative infancy. “We will keep the law under review and could amend, replace or remove protection in future if the evidence supports it”, the response noted.

Similarly, the U.K. has also decided that AI systems still can’t be given patents for inventions, despite some early movements in that direction in a couple of jurisdictions around the world. The main reasons it cited were that AI isn’t advanced enough yet to “invent” without significant human input — a legal opinion that is shared by most nations. In its consultation response, the U.K. said that it was reluctant to diverge too much from “international norms” on inventorship.

“This may be seen by some as a lost opportunity — however, the commitment to active engagement in working towards international consensus is very positive to see,” Johnson said. “From an end-user perspective, it would be undesirable for the IP landscape to be a fragmented on this issue. The government response is therefore in line with many of the court decisions in this area, in that it recognizes the potential for change in future, but avoids any immediate action.”

Google News launches a new desktop design with topic customization

Google News is refreshing its desktop site with a new design that allows you to track global and local news on one screen. The redesign puts Your Briefing, Local news, and Top Picks section on a single page in different columns so it’s easier to catch up with news on topics and regions you care about.

Until now, if you logged on to Google News, you’d see the headlines section first, along with the weather widget on the side. Other sections like World, For You, and Local news were accessible by scrolling down or by clicking on these topics from the sidebar.

What Google News looks like in its old avatar

The redesign moves all topics from the sidebar to the top of the screen, to better accommodate other columns like Local news and Top picks. The weather widget now takes up a small space on the top right of the screen. Google has tried to replicate the feeling of reading a newspaper or a magazine — but through a desktop website.

“This change is just the latest way we’re bringing local news to users around the world. Last year, we expanded a feature on Google Search so readers around the world can now see a carousel of local news stories when Google finds local news coverage relevant to their query. This helps them easily find stories from local news publishers,” the company said in a statement.

The new look for Google News

What’s more, you can click on the customize button next to the Your topics section to select topics that you want to see on the home page, and even shuffle their order of appearance.

Image Credits: Google

The redesigned Google News also features a revamped Fact Check section, which now also shows you the original claim and verified assessment for more context. Earlier this year, Google rolled out a new “highly cited” label in search to highlight the original source for a story.

The revamped Fact Check section, which provides more context

The company noted that along with these changes, Google News is returning to Spain after eight years, thanks to new copyright law. The firm claims that Google News is already present in 125 countries and 40 languages, and it drives 24 billion clicks to publishers’ websites every month.

Google said it’s opening up applications for its News Equity Fund, a grant for independent journalists or small news organizations to produce original stories. The firm will accept applications till July 21 from almost all countries across the world, except China and Russia.

Yesterday, Google quietly dropped its appeal against a €500M antitrust news licensing penalty in France. This came after French authorities accepted the firm’s behavioral pledges offered in December.  In a blog post, Google noted that it has made content deals with more than 150 publications in the country.

Can an AI be properly considered an inventor?

Several years ago, I wrote a piece titled “How AI and copyright would work.”

As I looked over the state of several interesting questions at the intersection of artificial intelligence and copyright at that time, my bottom line was pretty simple: If the copyright laws and regulations required a work to contain the expression of a human person, then that body of law (especially the text of the statutes, e.g., Title 17 in the U.S., but also the common law or civil law history of cases) did not yet countenance the assertedly “independent” creations of an AI, of which there are many types.

That is, at least in the U.S., essentially still the case. However, there’s been a significant volume of water that’s passed under the policy and lawmaking bridge since then, so I wanted to revisit the question.

First, let’s back up a little.

I have to admit that my reasoning in 2018 was narrow rather than broad. In this way, it was also based on that of the U.S. Copyright Office or USCO (see, for example, the Compendium of U.S. Copyright Office Practices, Third Edition (2021), p. 384, which is similar on this point to the earlier edition I used at the time), and so I focused on the “expression” requirement for copyrightability.

The work – and let’s note that it doesn’t have to be considered aesthetically “good” or have required a lot of skill – must simply be original (meaning that it was independently created and has at least a “modicum” of creativity) and an expression of some sort. This is why an unadorned set of directions, such as stripped-down basic instructions in a baking recipe, does not qualify, but “Mastering the Art of French Cooking” by Julia Child (a book that contains much more expressive text, which served to make it a bestseller) does.

While I am fully at peace with the personhood of (fictional) Commander Data of “Star Trek” in the 24th century, in our world devices by themselves do not and cannot express anything (even if your copy of Alexa or Siri appears to). I can’t say that I know how long that will continue to be the case, but even “Star Trek” suggests that it may be at least 350 years.

In 2020, the USCO and the World Intellectual Property Organization (WIPO) hosted a “symposium that took an in-depth look at how the creative community currently is using artificial intelligence (AI) to create original works.” And then, in 2021, the USCO and the U.S. Patent and Trademark Office (USPTO) held a second symposium looking at the potential for change in the treatment of machine-created works.

I still think we are at the very beginnings of what looks to be a long period of change in the interplay of technology and the law in this domain, but it is equally clear to me that the play has started to move.

The legal and regulatory environment for these tools remain at the forefront of copyright policy, and we observe that government agencies entrusted with administering these issues are thinking about them and soliciting views from the public about them. More about that in a moment.

Beginning in 2019, perhaps jumping the gun a bit on the USCO/USPTO/WIPO’s “let’s think about it” approach, something truly interesting happened in this domain.

Stephen Thaler, owner and developer of a patent-writing program known as DABUS, submitted patent applications in several countries. As a result of these applications, the government of South Africa recognized DABUS as the inventor on a patent.

Thaler, an advocate of recognizing these devices as inventors, clearly believes the time has come, stating, “It’s been more of a philosophical battle, convincing humanity that my creative neural architectures are compelling models of cognition, creativity, sentience, and consciousness. … The recently established fact that DABUS has created patent-worthy inventions is further evidence that the system ‘walks and talks’ just like a conscious human brain.”

(We should bear in mind, however, that an “author” in copyright is not an identical legal construction with that of an “inventor” in the domain of patents, but they are closely related concepts.) We also need to consider that the South African patent system does not involve an examination of the substance of an application, but unlike in a lot of countries leaves both first consideration and final resolution of patent validity to the courts, and so the patent grant was in some sense automatic and not policy-driven.)

Importantly, the U.S., the U.K., and the European Patent Offices (all of which do preliminary consideration of patentability) rejected this same patent application on the basis of its ineligibility. Australia, in effect, seconded the South African motion, at least to the degree that the application met its technical requirements “to the letter of the law” of Australian patent statutes.

We may point out that while the patent grant under South African law is narrow and technical, the question is no longer merely theoretical and we can perceive a threshold as having been crossed. For the purposes of this essay, I think South Africa and Australia have called the question: Can AIs be inventors, too? If so, should they be?” The question of whether AI ought to produce “authorship” for purposes of copyright cannot be far behind.

Most recently, over in the U.K., they are in the midst of an in-depth consultation of the whole issue. And I think the issues they are studying are the right ones:

  • Copyright protection for computer-generated works without a human author. These currently may be protected in the U.K. for 50 years. But should they be protected at all? And, if so, how should they be protected?
  • Licensing or exceptions to copyright for text and data mining. This is often significant in AI use and development.
  • Is there a case for protecting AI-devised inventions by IP rights? If yes, how should they be protected?

As I wrote earlier, “In my view, a self-aware, autonomous AI would be the prerequisite for its works to be protectable by copyright. At that time, such a revolution in technology might bring along with it a much greater revolution in society, with the law, including copyright law, changing, as well.”

I still think we are at the very beginnings of what looks to be a long period of change in the interplay of technology and the law in this domain, but it is equally clear to me that the play has started to move.

Google offers not to put News Showcase into search results in Germany as antitrust probe rolls on

In the latest bit of regulatory woe for Big Tech in Europe, Google is trying to settle a German antitrust investigation into its news licensing product by offering not to expand the display of News Showcase “story panels” into general search results.

The German Federal Cartel Office (FCO) announced today that the company has proposed several measures in response to its antitrust concerns — which also include taking steps to put clear blue water between News Showcase contracts and ongoing negotiations with publishers related to copyright licensing obligations around so called neighbouring rights for news.

Under EU and German law Google must pay copyright fees to news publishers for displaying snippets of their content — following a 2019 EU copyright reform which was transposed into German law in May 2021.

Unilateral attempts by German lawmakers — around a decade ago — to force Google to pay licensing fees to local publishers for displaying snippets of their content in Google News were easily thwarted by the tech giant switching to an opt-in model for the aggregator in the market.

Ultimately it’s taken a pan-EU directive — combine with local antitrust intervention — to force Google’s hand on this issue so it can’t simply change how it operates to circumvent payments.

Although the tech giant’s compliance with EU copyright law remains a work in progress, to put it mildly. (Its activity in the region on this front has already attracted a fine of over half a billion dollars in France, for instance, where Google’s approach to news licensing also remains under close regulatory watch.)

Germany is also scrutinizing Google’s negotiations with local news publishers — as well as, as of today, extracting operational concessions from it on how it operates News Showcase.

The FCO said it’s concerned that if Google integrates News Showcase into general search results, as Google has previously said it intends to, it will result in the company self-preferencing its own services or “impeding services offered by competing third parties”.

Other concerns it has focus on whether the News Showcase contractual terms “unreasonably disadvantage” the participating publishers — including by making it “disproportionately difficult for them to enforce their general ancillary copyright when participating in Google News Showcase”.

The regulator also said it is reviewing Google’s conditions for access to Google’s News Showcase service — to examine whether non-discriminatory access is ensured for publishers.

It’s likely no accident that just last week the FCO confirmed its ability to apply special measures to Google’s business, under powers to tackle digital market giants which were passed by local lawmakers at the start of last year. That shrinks the timeframe for regulatory action and squeezes how much room Google has to try to wiggle around any FCO orders.

Similar Big Tech-focused copyright reforms are underway in the UK, too. While ex ante rules for gatekeeping giants are well on their way to being adopted at an EU level (aka, the Digital Markets Act). So the operational leash for Big Tech in Europe is only set to shorten.

As well as offering not to expand the showcasing of licensed content to general search results in Germany, the FCO said today that Google has “already changed some of the practices under examination and declared its willingness to address any remaining ambiguities and concerns by modifying the Showcase contracts and providing clarifying statements”.

“In particular, Showcase contracts are to be clearly separated from the ongoing negotiations regarding other ancillary copyright payments between Google and the publishers or their collecting societies,” it added.

The tech giant announced the global News Showcase product back in October 2020 — when it said it would pay participating publishers $1BN collectively to licence their news content to appear in so-called “story panels” (see below examples from Google’s product marketing) across Google products.

Screengrab: Natasha Lomas/TechCrunch

At the time Google was facing rising legal requirements in a number of jurisdictions over remuneration for displaying news content (Australia came up with its own legislative template targeting Google and Facebook to pay for news reuse in August 2020, for example).

So the News Showcase gambit always looked like a naked attempt by Google to limit a looming revenue hit while simultaneously leveraging its market power to generate as much upside for its ad-monetizing Internet content business as possible.

Closed door commercial deals for News Showcase offered Google the chance to dangle a carrot of licensing payments and play publishers off against each other — pressuring them to agree to its terms and shrink legally mandated licensing fees.

Initially, Google said content licensed under News Showcase would appear in story panels on the Google News app on mobile devices. It went on to expand where participating publishers’ content appeared to include its News aggregator product on the desktop and a personalized content feed on mobile devices, called Google Discover.

Evidently, it hoped to be able to further expand where across its online real-estate the licensed content appears — including by adding News Showcase into search results.

However, in Europe, where Google’s search engine remains dominant, its plan quickly landed it in regulatory hot water over competition concerns.

As its name suggests, the News Showcase product provides the prospect of raised visibility for participating publishers by featuring their content to Google users across a number of touchpoints — including giving mobile users the ability to follow publishers so that more of their content gets threaded into personalized feeds. So there is a strong incentive for publishers to cut deals with Google — giving it leverage over content licensing negotiations.

For example, publishers may feel incentivized to cut deals with Google for News Showcase in order not to miss out on the prospect of extra traffic being sent their way (especially if competitors have already cut deals) — putting commercial pressure on them to agree to broad licensing terms that might waive or reduce copyright-based licensing fees.

The problem for Google is that European competition regulators have not been taken in by its attempt to use a proprietary news display product and commercial terms to smudge copyright compliance by co-mingling News Showcase negotiations and contacts with legally required licensing fees — and have instead listened to publisher complaints that Google is not playing fair. (The FCO probe, for example, was opened followed a complaint filed by the collecting society Corint Media.)

Issuing a hefty sanction last summer, the French competition watchdog said Google had sought to unilaterally impose its global news licensing product in negotiations with publishers — pushing for the legal neighbouring right to be incorporated as “an ancillary component with no separate financial valuation”.

Its investigation continues — but has already landed Google with a $592M fine for breaching an earlier order.

Germany hasn’t issues any sanctions yet but, with the FCO flush with new powers to tackle abusive digital giants, the threat is clearly there. Hence Google’s alacritous offer of tweaks to how it operates the News Showcase product in Germany (the FCO only began probing the T&Cs last summer).

Google’s dominance in Europe in the market for general search means the company has faced a number of antirust enforcements in recent years — both at an EU and national level. But it’s fair to say that EU Member States’ competition watchdogs have been quickest to respond to news publishers’ concerns.

Germany was one of the first markets to get News Showcase which has likely fed the FCO’s relatively quick scrutiny of the product. Although France was faster to transpose the EU copyright reform into national law — and its competition watchdog has been keenly focused on Google’s compliance with the neighbouring right requirement, and with the detail of how it has negotiated fees with news publishers over reuse of their content.

In December, the French regulator announced Google had made a series of commitments around negotiating in good faith — which it proposed should apply for a period of five years.

France’s watchdog is consulting on Google’s proposal until the end of this month — after which it will make a decision whether to accept them or require additional measures.

The German FCO is also now consulting locally on Google’s operational offers around News Showcase.

In a statement, president Andreas Mundt said: “Google has proposed measures to respond to our competition concerns relating to Google News Showcase. The company no longer plans to include Showcase content in the general search results. The conditions for participating in Google News Showcase are not intended to prevent publishers from enforcing their general ancillary copyright. Access to Google News Showcase is based on objective criteria. We rely on the assessment of the market players affected to ensure that the measures proposed by Google are effective. In view of the wide variety of interests the publishers may have we are thus conducting broader consultations in the sector.”

He further noted that the regulator is keeping a close eye on how Google negotiates with publishers over copyright fees, adding: “Parallel to the Google News Showcase proceeding we are closely monitoring the negotiations on ancillary copyright fees.”

In yet another recent regulatory intervention triggered by publisher (and adtech) complaints, Google’s plan to deprecate support for third party tracking cookies and move to a suite of new ad targeting technologies (aka Privacy Sandbox) is under close supervision of the UK’s competition watchdog — and that process has also led Google to propose a series of commitments in order to be allowed to proceed.

Separately last summer, France’s competition watchdog hit Google with a $268M fine for self preferencing its adtech — leading to yet another behavioral offer from the tech giant, in that case a set of interoperability commitments.


Google offers behavioral pledges on news payments in France to try to end costly antitrust litigation

In its latest move to placate European competition regulators, Google has offered a set of commitments to France’s antitrust watchdog — in the hopes of settling a costly (for it) intervention over legally mandated payments for displaying snippets of news publishers’ content.

Back in July, France’s Autorité de la Concurrence slapped the tech giant with a fine of half a billion euros over a series of suspected breaches in how it negotiated with news publishers to remunerate them for reuse of their content.

The backstory here is the European Union agreed a reform of digital copyright rules, back in 2019, which (among other changes) extending copyright law to cover snippets of news publishers’ content that were being routinely reused by aggregators like Google News.

While there was plenty of criticism of the reform at the time, the directive has given the bloc’s news publishers leverage over Google and does appear to have contributed to the adtech giant’s decision to abandon its earlier hard line stance — of saying it would never pay a penny for news content — in favor of creating its own content licensing product aimed at news publishers.

However that News Showcase product looked like a cynical attempt by Google to more cheaply circumvent legal requirements by using a global news licensing vehicle to bundle compliance with a growing number of national laws on news content remuneration (see also: Australia, which earlier this year passed a law requiring Google and Facebook engage in mandatory negotiations with publishers over content reuse) — and grab itself sweeping rights to publishers’ content in the process — and that’s exactly the sort of ‘bad faith’ behavior that Google is being called out for in France.

France was one of the first EU Member States to transpose the pan-EU copyright directive into national law, and the Autorité has taken an aggressive approach to enforcing complaints over Google’s compliance with the new rules.

So, for example, when Google sought to evade application of the law in the country — by stopping displaying snippets of local publishers’ content unless publishers gave it free authorization to show them — the watchdog slapped down the practice, finding last year that it was likely to be abuse of a dominant market position; and telling Google it could not just unilaterally withdraw the content.

It also ordered Google to negotiate in good faith with publishers to pay for displaying their legally protected content — giving it three months to do so. After which, following a number of complaints by French publishers, the Autorité stepped in again to investigate Google’s behavior.

And it went on to apply interim measures in July, based on its preliminary concerns.

In a nutshell, the Autorité believes Google has applied “unfair and discriminatory settlement conditions”; and is likely to have sought to circumvent the law on “related rights” — although its investigation continues in parallel with the intervention.

The latest development now is that the Autorité has now published details of a set of commitments Google has offered to try to resolve the investigation. The watchdog is consulting on the proposals — inviting interested third parties, publishers and news agencies to submit comments before January 31, 2022.

It will then hold a hearing with relevant parties and could choose to close the case — if it decides Google’s commitments are acceptable — at which point it would make them binding on Google.

It could also opt to amend and beef up the commitments. So Google’s offer is by no means the final word.

Over in the UK, meanwhile, the Competition and Markets Authority is undertaking a similar procedure in relation to Google’s planned deprecation of tracking cookies to migrate to alternative ad targeting tech — with the CMA currently consulting on commitments Google has offered around its Privacy Sandbox proposal (and in that case if they are accepted Google has said it will apply them globally) — underlining the growing influence European regulators are having over the future shape of Big Tech.

Germany’s Federal Cartel Office also has an in-train procedure related to Google’s News Showcase T&Cs. So Google is likely facing more antitrust action on this front in Europe.

What is Google offering in France?

The Autorité said Google has proposed the following “remedies”:

  • Google undertakes to “negotiate in good faith” with press publishers and news agencies that so request, the remuneration for any reproduction of protected content on its services in accordance with the modalities laid down in Article L.218-4 of the French Intellectual Property Code (Code de la propriété intellectuelle) and according to transparent, objective and non-discriminatory criteria.
  • Google undertakes to communicate the information necessary for a transparent evaluation of the proposed remuneration, as provided for in Article L.218-4 of the French Intellectual Property Code (Code de la propriété intellectuelle).
  • Google undertakes to make a proposal for remuneration within three months of the start of negotiations;
  • In the event that the parties are unable to reach an agreement, the negotiating parties will have the option of referring the matter to an arbitration tribunal to determine the amount of remuneration. Google undertakes to pay the fees of the arbitrators and the arbitration proceedings in the first instance;
  • Google undertakes to take the necessary steps to ensure that the negotiations do not affect the indexation, ranking or presentation of protected content;
  • Google undertakes to take the necessary steps to ensure that the negotiations do not affect any other economic relationship that may exist between Google and the news publishers and news agencies;
  • An independent trustee approved by the Autorité will ensure the implementation of the commitments made and may, if necessary, call on the services of a technical, financial or intellectual property expert.
  • The commitments will apply for a period of five years.

In its own blog post about the proposals (written in French), attributed to Sébastien Missoffe, VP and CEO of Google France, Google points to recent deals it’s inked with local publishers (such as AFP) — claiming this sums to “significant progress” on reaching an entente cordiale on the news numeration issue, while acknowledging negotiations with other French publishers are still ongoing.

Google condenses what it’s proposing — and what it hopes will end the expensive litigation, with Missoffe suggesting the proposals will “open a new chapter in the area of ​​Neighboring Rights” — under the following three subtitles: “Specific offers on neighboring rights”; “Respect for the choices of the publishers”; and “More transparency and independent supervision”.

And we could perhaps further condense that to an offer of ‘specific respect, supervised’.

It’s certainly notable that both the Autorité’s intervention over news and the CMA’s investigation of Google’s Privacy Sandbox have led to an offer — by Google — of an monitoring trustee to verify compliance, underlying how little trust advertisers and publishers have in the tech giant doing the right thing when no one is looking.

Indeed, the first set of commitments Google offered the CMA did not go far enough to convince the wider market which feeds Google’s ad coffers that it would play fair — leading Google to come back with enhanced commitments (including the offer of the monitoring trustee and a slight extension to the length of time the commitments would be enforced).

It remains to be seen whether publishers in France will be content with Google’s first offer — or also push for greater assurances that the tech giant will play fair over news remuneration.

Google, meanwhile, signs off its blog post by claiming its “objective” is to “conclude definitive agreements, in compliance with the law, and to open a new chapter with press editors”. But the prospect of a $592M fine has doubtless helped concentrate minds in Mountain View vis-a-vis compliance with French law.

“Regardless of these commitments, Google will continue to invest, as we have for years, in products and training to support journalism,” Missoffe adds in remarks that are of course irrelevant to the specific issue of compliance with French law.


Google fined $592M in France for breaching antitrust order to negotiate copyright fees for news snippets

France has hit Google with a fine of half a billion euros after finding major breaches in how it negotiated with publishers to remunerate them for reuse of their content — as is required under a pan-EU reform of digital copyright law which extended neighbouring rights to news snippets.

The size of the fine is notable as it’s over half of the entire $1BN news licensing pot that Google announced last October — when it said it would be paying news publishers “to create and curate high-quality content” to appear on its platforms.

At the time, the move that looked intended to shrink Google’s exposure to legal mandates to pay publishers for content reuse by pushing them to accept commercial terms which give it broad rights to ‘showcase’ their content.

France’s watchdog has now called out — and sanctioned — the practice.

The half a billion euro penalty is also notable for being considerably more than Google had already agreed to pay French publishers, according to Reuters — which reported, back in February, that the tech giant had inked a deal with a group of 121 publishers to pay them just $76M over three years.

France’s competition authority said today that it’s applying the sanction of €500 million ($592M) against the tech giant for failing to comply with a number of injunctions related to its earlier, April 2020 decision — when the watchdog ordered Google to negotiate in good faith with publishers to remunerate them for displaying their protected content.

Initially, Google sought to evade the neighbouring news right by stopping displaying snippets of content alongside links it showed in Google News in France. But the watchdog found that was likely to be an abuse of its dominant position — and ordered Google to stop circumventing the law and negotiate with publishers to pay for the reuse in good faith.

The Autorité de la Concurrence is not happy with how Google has gone about this, though.

A number of publishers complained to it that the negotiations were not carried out in good faith and that Google did not provide them with key information necessary to inform payments.

The Syndicate of magazine press publishers (SEPM), the Alliance de Presse d’Information Générale (APIG) and Agence France Presse (AFP) made complaints in August/September 2020 — kicking off the investigation by the watchdog and today’s announcement of a major penalty.

Further fines — of up to €900,000 per day — could be headed Google’s way if it continues to breach the watchdog’s injunctions and fails to supply publishers with all the required information within a new two-month deadline.

In a press release detailing its investigation, the Autorité said Google sought to unilaterally impose its global news licensing product, aka ‘Showcase’, under a partnership the tech giant calls Publisher Curated News — in negotiations with publishers — pushing for the legal neighbouring right to be incorporated as “an ancillary component with no separate financial valuation”.

Publishers requests to break out copyright remuneration negotiations were denied, per the watchdog’s investigation.

It also found Google “unjustifiably” reduced the scope of negotiations with regard to the scope of income derived from the display of protected news content — with Google telling publishers that only advertising income from Google Search pages posting news content should be taken into account in determining the level of remuneration due.

The authority found this exclusion of income from other Google services and all indirect income related to this content to be in breach of the copyright law and its earlier compliance order.

Google also “deliberately circumscribed” the scope of the law on neighboring rights by excluding titles that do not have a Political and General Information certificate — which the watchdog couched as a “bad faith” interpretation of the code on intellectual property.

It also found the tech giant sought to exclude press agencies from renumeration related to their content when used by third party publishers — highlighting that as another breach of its April 2020 decision, by further noting: “The French legislator has been very explicit on the need to include press agencies.”

In another finding, it said Google had only provided publishers with “partial” and “insufficient” information for a “transparency assessment of renumeration due”; and further accused the tech giant of delaying until just a few days before the injunction deadline to provide it — so of being “late” too.

The authority’s investigation highlights compliance problems with another injunction — related to an obligation of neutrality in how protected content is presented on Google’s platforms — with the watchdog writing on that: “The strategy put in place by Google has thus strongly encouraged publishers to accept the contractual conditions of the Showcase service and to renounce negotiations relating specifically to the current uses of protected content, which was the subject of the Injunctions, under penalty of seeing their exposure and their remuneration degraded compared to their competitors who would have accepted the proposed terms. Google cannot therefore claim to have taken the necessary measures to prevent its negotiations from affecting the presentation of protected content in its services.”

Another injunction sought to prevent Google from seeking to leverage its dominance by offsetting remunerations paid to publishers for the neighbouring rights.

On this the watchdog also took issue with its approach — noting that its Showcase product requires publishers to make not just snippets of their content available for display on Google’s platforms but “large extracts” and even whole articles.

It also found that Google linked participation in the Showcase program to subscription to another service called Subscribe with Google (SwG) — enabling it to link negotiation on neighboring rights with the subscription of new services that could financially benefit its business.

Under a subhead which denounces what it found as “extremely serious practices”, the authority goes on to accuse Google of “a deliberate, elaborate and systematic strategy of non-compliance” — and of continuing an already years-long “opposition strategy” to the principle of neighbouring rights; and then, after they’d been baked into EU and French law, seeking to “minimize the concrete scope of those rights as much as possible”.

Google has, the authority asserts, sought to use a global strategy to close down publishers’ ability to negotiate for remuneration for their content reuse at a national level — using its Showcase product as a cloak for “avoiding or limiting as much as possible” payments to publishers; and, simultaneously, seeking to use negotiations on neighboring rights as an opportunity to obtain access to new content by press publishers that could allow it to collect additional income, such as from subscriptions to press titles.

“The sanction of 500 million euros takes into account the exceptional seriousness of the breaches observed and that the behavior of Google has further delayed the proper application of the law on neighboring rights, which aimed to better take into account the value of content from publishers and news agencies included on the platforms. The Authority will be extremely vigilant about the correct application of its decision, as non-execution can now lead to periodic penalty payments,” added the watchdog’s president, Isabelle de Silva, in a statement (which we’ve translated from French).

The half a billion euro fine and the warning to Google that its practices will attract daily fines if it persists in ignoring the injunctions put the tech giant on notice that the detail of commercial deals won’t be allowed to fly under the radar in France.

Any more attempts to shape a self-serving version of ‘compliance’ are likely to attract further sanction from the watchdog — which also recently applied a number of interoperability requirements on Google’s ad business (and slapped it with a $268M fine), also acting on complaints from publishers.

While anything Google agrees to in France on the neighbouring rights issue is likely to set the bar for what it can achieve with commercial deals elsewhere — at least in other EU markets, where the copyright extension also applies (once it’s been transposed into a Member State’s national law).

In a statement responding to the authority’s sanction, Google expressed disappointment with the outcome of the investigation — claiming to have acted in good faith throughout negotiations with publishers:

“We are very disappointed with this decision — we have acted in good faith throughout the entire process. The fine ignores our efforts to reach an agreement, and the reality of how news works on our platforms. To date, Google is the only company to have announced agreements on neighbouring rights. We are also about to finalize an agreement with AFP that includes a global licensing agreement, as well as the remuneration of their neighbouring rights for their press publications.”

The tech giant went on to suggest that the authority’s decision is “primarily” related to negotiations in France which took place between May and September 2020, further claiming it has continued to engage with publishers and press agencies since then to find “solutions”.

By way of example it pointed to a January 2021 framework agreement inked with the Alliance de la Presse d’Information Générale — which it claims covers every IPG title (Information de Presse Générale) in a “transparent and non-discriminatory way”. It also pointed to agreements it has inked with other publications in the market, including Le Monde, Courrier International, L’Obs, Le Figaro, Libération, and L’Express.

Google also reiterated its confident it can sign a global licensing agreement with Agence France Presse — which it said it also wants to include remuneration of neighbouring rights for press publications from the agency.

“Our objective remains the same: We want to turn the page with a definitive agreement,” it added, saying it would take the French Competition Authority’s “feedback into consideration and adapt our offers” and that: “We are already engaging with press publishers and agencies beyond IPG, by covering publications that are recognised by the CPPAP as ‘online press services’, and we reiterate our offer to have an independent third party in a position to evaluate our offers and allow us to base our discussions on facts.”

Other major fines for Google in France in recent years include the aforementioned $268M for adtech abuses last month; $120 for dropping tracking cookies without consent back in December; $166M in December 2019 for opaque and inconsistent ad rules; and $57M for privacy violations in January 2019.

Beyond the EU, Australia recently passed a law which requires tech giants, Google and Facebook, to enter mandatory arbitration with publishers for reuse of their content if they fail to agree commercial terms on their own.

Its law has attracted considerable attention worldwide as legislators grapple with how to rein in powerful tech platforms and ensure the sustainability of traditional news businesses whose revenues have been hit by the Internet-driven shift to digital publishing.

The UK’s Competition and Markets Authority has, for example, described Australia’s backstop of mandatory arbitration if commercial negotiations fail as a “sensible” approach — at at time when the government is working on shaping an ex ante regulation regime to enable competition authorities to pro-actively tackle abuses by platforms with strategic market power.

Ahead of Australia’s law being passed, Google had warned that it might have to close its services in the country if legislators went ahead and also suggested the quality could degrade or that it may have to start to charge for products. In the event, it did not shut up shop down under.

The tech giant was also an active lobbyist against the EU’s plan to extend digital copyright to cover snippets of news content — and, as recently as 2019, it was vowing never to pay for news.

A few years later it announced the $1BN pot to pay publishers to licence content. But Google’s eventual bill for its ad business piggybacking upon others’ journalism may be rather larger than that.

No, NFTs aren’t copyrights

For contemporary artists, attaching work to the blockchain in the form of a non-fungible token (NFT) may seem like a secure and verifiable way to sell art online.

In some ways, it is. Blockchain inherently records time-stamped data on all transactions, with a permanent indication of ownership across a distributed ledger. A look inside a blockchain’s transactions will provide all the information needed about when an NFT was traded, who was involved in the transaction and how much was spent.

But the reality of NFT ownership is much more complicated than one might imagine. As a new crypto asset class, NFTs appear to exist almost unbound by current regulatory systems. But when combined with art, there are overlaps to consider. Understanding the legal pitfalls of the contemporary NFT ecosystem is the first step in unlocking its potential.

Does copyright exist on the blockchain?

High hopes abound for the potential of NFTs to serve as copyright alternatives, with many believing them to be copyrights themselves. When viewed at face value, it’s easy to understand the confusion.

The NFT purchaser owns nothing more than a unique hash on the blockchain with a transactional record and a hyperlink to the file of the artwork.

The truth is, NFTs are just tokens that represent an asset, completely separate from the assets themselves. Because every NFT represents a unique asset, a single NFT can’t be duplicated while maintaining the same value as the original. Many equate this exclusive form of ownership with ownership of the work itself, but the distinction must be emphasized.

This misconception goes further. The range of possibilities for what can be an NFT coincides surprisingly well with works eligible for copyright. While every jurisdiction defines “works” in different ways, none stray too far from the essentials. In Canada, for example, copyright protection extends to literary, artistic, dramatic or musical works in addition to performances, recordings and other related works. Creators need not apply for these protections — the state provides them inherently upon the creation of the work.

Naturally, this protection is guaranteed for the original work that an NFT represents. When artwork is created and auctioned on an NFT marketplace, the copyright functions almost exactly as it would in an in-person scenario, with the copyright retained by the artist. But a lack of copyright trading infrastructure that complies with international law makes the exchange of NFT copyrights impossible on current platforms.

So unless an external agreement is made between the artist and the buyer, the bundle of copyrights to an NFT still belong to the original artist. The NFT purchaser owns nothing more than a unique hash on the blockchain with a transactional record and a hyperlink to the file of the artwork.

Without legal parameters, fraud is inevitable

The issue of NFT copyright tracking gets even trickier when considering the potential for theft and fraud. In order to be added to the blockchain, NFTs must be “signed” by the uploader in a process known as “minting.” Similar to a painter’s signature on their painting, this feature is intended to link the NFT to its creator. Things can go wrong when minters lie about their identity, which is not uncommon across many NFT platforms.

The issue stems from the lack of a strong legal framework in the NFT market. One can mint a tweet, art piece or even a gif of Nyan Cat without being the actual creator on some platforms. As a result, many artists have reported seeing their art being stolen and sold in NFT form without their consent in what would clearly be a copyright violation in the traditional art marketplace.

This issue is particularly pervasive among NFT tweet exchanges. A Twitter bot known as @tokenizedtweets went on a minting spree earlier this year, sending shockwaves throughout Twitter and the NFT community. Its policy of creating NFTs from viral tweets without the author’s consent or even notification caused an outcry from several actors, artists and other creators, provoking responses from names as big as William Shatner, who expressed concern about “these @tokenizedtweets stealing content, images I upload and my tweets which are all under my copyright being tokenized and sold without permission.”

Theft and fraud are natural results of platforms that lack a strong legal infrastructure. The actions of @tokenizedtweets, now banned from Twitter, demonstrates this issue well.

What’s missing? International compliance

So far, no NFT platforms have ventured into internationally compliant territory for the copyright of art that an NFT sale represents. Doing so would be a tremendous leap for the NFT ecosystem. In addition to minimizing fraud through stronger copyright enforcement, international compliance would allow for tokenized copyright exchange within the blockchain itself.

The groundwork has already been laid thanks to the 1886 Berne Convention, an international agreement that guarantees standardized copyright protection at the moment a work is created in any of its 179 signatory countries. The treaty was tested in 2014, for example, when Tom Petty sued Sam Smith for copyright infringement over Smith’s hit song, “Stay With Me,” which is almost melodically identical to Petty’s “I Won’t Back Down.” The suit and settlement, which includes royalties to Petty’s estate, demonstrated the continuing functionality of the Berne Convention.

The 1996 WIPO Copyright Treaty formally brought Berne principles into the digital art realm, but many Berne Convention signatories didn’t sign it. With no new treaties on the horizon, the private sector may have to pick up the slack left behind by world governments.

The NFT world still fails to comply with the diversity of copyright law around the world despite the uniformity imposed by international treaties. To move the industry away from speculation and into global functionality, international copyright compliance must be incorporated into this emerging ecosystem.