Poland gets creative with Text and Data Mining

Last week, the Polish government proposed its much-delayed implementation of the Copyright Directive. The implementation proposal contained a big surprise: the Polish government is proposing to add language to the Text and Data mining that asserts that “reproduction of works for text and data mining cannot be used to create generative AI models.” Paul has published an analysis of the proposal on the Kluwer Copyright Blog in which he argues that such a limitation is not only non-compliant with the provisions of the CDSM directive. It is also based on flawed assumptions and would result in a legal mess:

At this point, it seems useful to recall the key balances inherent in the EU’s regulatory framework for the use of copyrighted works in AI training. They form the basis of claims by the Commission and others that the EU has a uniquely balanced approach to this thorny issue. Taken together, the TDM provisions address 4 key concerns: (1) They limit permission to use copyrighted works for training data to those works that are lawfully accessible. They (2) privilege non-profit scientific research, (3) they ensure that creators and other rights holders can exclude their works from being used to train generative AI systems, and (4) they ensure that works that are not actively managed by their rights holders can be used to train AI models.

Excluding the training of generative AI from this balanced arrangement may please some creators and rights holders, but it also pushes AI back into a legal gray area. It also seems incompatible with the provisions of the AI Act, which situates the training of generative AI models within the broader concept of TDM, and which will be directly applicable in Poland.

Expanding on this analysis, we have also submitted a contribution (PL|EN) to the public consultation launched by the Polish Ministry of Culture and National Heritage that argues for an implementation in line with the directive and suggests that Polish lawmakers should instead focus on enabling a fair remuneration for creators who opt out of TDM and ensuring the sustainability of public information resources.