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On Wednesday, the French competition authority fined Google 250 million euros for failing to inform news publishers about the use of their content to train a generative AI system. Technically, the fine is a penalty for failing to comply with commitments Google had previously made to news publishers in a 2021 settlement that is being monitored by the competition authority.
What makes the decision noteworthy is that it is the first documented case in which the use of copyrighted works to train AI systems has been challenged under the EU’s copyright framework. While there are numerous pending cases pitting creators and other rights holders against generative AI companies, almost all of them have been filed outside the EU.
As we have pointed out before, the main shortcoming of the EU approach to regulating the use of copyrighted works for AI training is the lack of standardized ways for creators and other rightholders to opt out. This aspect also played a key role in the Competition Authorities’ decision, which states:
Furthermore, until at least September 28, 2023 and the launch of its “Google Extended” tool, Google did not offer a technical solution enabling publishers and press agencies to oppose the use of their content by Bard without affecting the display of this content on other Google services. Indeed, until now, publishers and press agencies wishing to oppose such use had to insert an instruction opposing any indexing of their content by Google, including on the Search, Discover and Google News services, which were precisely the subject of negotiation for the remuneration of neighboring rights. In the future, the Autorité will be particularly attentive to the effectiveness of the opt-out mechanisms put in place by Google.
This once more underlines the urgent need to implement standards for rightsholder opt-outs that are efficient, flexible and scalable.
