Date and Time: September 23th, 2024, 16:00h
Room: Viale Pola, AT 11a-b
 

The meeting aims at taking stock of the European Policy for Intellectual Property (EPIP) Congress in Pisa (11-13 September 2024), where some of the ILEO members presented their latest research on intellectual property and ethical innovation. The ILEO members will share again their works, integrating the feedback and comments received during the Congress sessions. After an exchange with the audience, the final part of the meeting will be dedicated to exploring future directions for ILEO’s activities, inspired by the discussions and collaborations fostered at the EPIP Congress, but also at the ATRIP annual Congress hosted jointly in July 2024 by the Luiss Department of Law and ILEO.
 
 
Program

16:00 – 16:10 Chair and introduction
Christophe Geiger, Professor of Law and Director of the Innovation Law and Ethics Observatory, Luiss, Rome
Presentations:
16:10 – 16:25 Christophe Geiger and Bernd Justin Jütte – Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights.
16:25 – 16:35 Discussion
16:35 – 16:50 Francesca Di Lazzaro – Sustainable Copyright: A roadmap to fair and equitable access to education through Generative AI.
16:50 – 17:00 Discussion
17:00 – 17:15 Christophe Geiger and Vincenzo Iaia - Towards an Independent EU Regulator for Copyright Issues of Generative AI: What Role for the AI Office?
17:15 – 17:25 Discussion
17:25 – 17:35 Conclusions
 
 
Abstracts:

Christophe Geiger and Bernd Justin Jütte – Copyright as an Access Right: Concretizing Positive Obligations for Rightholders to Ensure the Exercise of User Rights.
 
While rightholders have for long enjoyed protection of their works and subject matter through exclusive rights, the CJEU only recently emphasized that users of such copyright subject matter enjoy rights to perform specific uses. These rights exist to enable uses covered by limitations and exceptions (L&E) rooted in and justified by fundamental rights (FR) and the function of copyright. The idea of the social contract underlying copyright’s bargain implies reciprocal obligations: any grant of exclusive rights must entail legal duties for rightholders to realize copyright’s core function and guarantee the exercise of competing FR as well as the preservation of societal values. EU Member States thus incur positive obligations to realize these rights. This paper explores what positive duties must be imposed on rightholders to realize user rights. To enable copyright to function as a vehicle for access to culture, education and an enabler for research and innovation, the effective exercise of user rights must be guaranteed. It is therefore indispensable to guarantee access to copyrighted works under fair and reasonable conditions. Certain beneficiaries that play central roles in the exercise of user rights (libraries, public archives, universities) must be put in a position to enable the exercise of these rights and to function as access points for a broader public. Initial access - on fair terms and unimpeded by technological means or contractual restrictions - is therefore an essential condition to exercise and to benefit from an L&E granted by copyright law.
This paper explores ways to overcome the access problem and to make user’s rights a reality in the digital world. Due to the nature of copyright as an access right, current copyright rules need to be applied in an access-friendly manner. First, existing L&E must be construed to create positive obligations for rightholders. Second, a full realization of copyright’s access rationale requires legislative reform, particular with a view to enable digital uses as equivalent functions to analogue uses. To fulfill the social contract underlying copyright law requires a FR compliant interpretation of existing rules as well as changes in substantive copyright and a fair balance of rights and obligations.
 
The paper is forthcoming  in GRUR Int.- Journal of European and International IP Law 2024, Issue 11 and available on ssrn: https:/papers.ssrn.com/sol3/papers.cfm?abstract_id=4949672.
 
Francesca Di Lazzaro – Sustainable Copyright: A roadmap to fair and equitable access to education through Generative AI.
 
The paper highlights the importance of a copyright framework in enabling access to education regardless of class, gender, and language for the implementation of SDG no. 4, and underlines the role that Generative Artificial Intelligence (Gen AI) systems can play in this regard. The urge to achieve universal access to education is pressing: studies undertaken have proven that the disparity between woman and man and poor and rich when it comes to access to education still needs to be fixed. In the spirit of addressing such issues, SDG no. 4 sets some targets to be achieved to “ensure inclusive and equitable quality education and promote lifelong learning opportunities for all”. The implementation of this goal requires that educational materials are universally easily accessible, available in different languages (including minorities one) and possibly at no costs for the students. In the context of this roadmap to sustainable copyright this paper proposes a solution based on the use of Gen AI and discusses a proposal for reform of copyright law to achieve SDG no. 4. In particular, the paper assesses the relevant copyright legislative framework and analyses the instances in which copyright law provisions can limit access to materials for subsequent reproductions and elaborations, potentially also for educational purposes, primarily in the EU and through an instrumental comparison with the legislative framework in the UK and in the US. The paper finds that the current legislative framework is insufficient as it currently stands, and that the copyright system shall structurally provide for the promotion of education. On the back of the above considerations, the paper advocates for the set-up of a new system of limitations and exceptions, for the implementation of SDG no. 4, enabling access to education regardless of class, gender, and language. The second step is the subsequent creation of an open repository (which will be called database of “essential knowledge”) in which materials and their elaborations - understood broadly and including translations and image to text conversions - should convey and be easily available.
 
The paper anticipates the conclusions of a PhD thesis that asserts the importance of access to materials for educational purposes for the achievement of sustainable development and highlights the role that copyright can play in this regard, starting from the analysis of the Sustainable Development Goals (SDGs) as a theoretical framework.
 
Christophe Geiger and Vincenzo Iaia - Towards an Independent EU Regulator for Copyright Issues of Generative AI: What Role for the AI Office?
 
The rampant success of Generative AI services poses a new copyright conundrum. All over the world, it is discussed whether the training of General-Purpose AI models (GPAIM) with copyright protected works for commercial purposes falls within the exclusive bundle of rights of copyright holders. In the EU, the recent AI Act (in its last adopted version) seems to refer to the legal framework of the text and data mining exceptions of directive 790/2019/EU (CDSM directive) to solve the issue. According to Art. 4.3 of the CDSM directive, copyright holders can opt-out of the exception and thus reserve their content for the extraction of their intellectual works to improve machine learning performances. There are currently many uncertainties with regard to who (is it the author or its derivative rightsholder? Do CMO’s have the mandate to do so?) and how (what is exactly a machine-readable format as requested by the exception?) to exercise the opt-out.
This paper compares the foreseeable promises and limitations of the AI Office to ensure sustainable creativity in Europe after the tectonic shift brought by Generative AI to the already fragile balance of the copyright system. It argues that the complexity of copyright issues in the digital environment should invite to a reflection on the proper institutional framework regulating EU copyright law. For this purpose, it has been proposed that the EU could considers setting up a European Copyright Agency with the broader task of ensuring the well-functioning of the European market of copyright-protected works (Geiger/ Mangal, 2022). In this perspective, the agency would operate in consultation with the AI Office to address the emerging demand for intellectual works to train machine learning models and coordinate /cooperate with the various sectorial regulators set up recently in the various legislative interventions (Digital Services Act, Data act, European Media Freedom Act) with regard to copyright matters in the online world, thus ensure coherence and transparency for the parties involved.
 
The paper is forthcoming in the forthcoming issue of the Journal Auteurs et Médias and available on ssrn: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4914938.