Artificial Intelligence Act ("AI Act") and intellectual property

Regulation (EU) 2024/1689 laying down harmonised rules on artificial intelligence, known as the AI Act, establishes a framework based on the level of risk presented by systems, from the prohibition of certain practices to lighter obligations for everyday uses. It is not an intellectual property instrument, but it contains several provisions of direct interest to rightholders and developers: the copyright obligations of providers of general-purpose models, the transparency obligations relating to generated content and the protection of the confidentiality of information communicated to the authorities.

Obligations of providers of general-purpose models

The Regulation requires providers of general-purpose artificial intelligence models to draw up and keep up to date technical documentation, to provide downstream integrators with the information needed to understand the model, to adopt a policy to comply with Union copyright law and to publish a sufficiently detailed summary of the content used for training, following a template drawn up by the AI Office. The compliance policy must in particular make it possible to identify and comply with the reservations of rights expressed by rightholders under the text and data mining exception.

Transparency of generated content

The Regulation requires synthetic content produced by an artificial intelligence system to be marked in a machine-readable format enabling it to be identified as generated or manipulated, and requires those deploying a system that produces a deepfake to disclose the artificial nature of the content. Those rules facilitate proof in infringement cases and in cases of interference with personality rights, since they make it possible to link content to a system and to establish its nature. They do not, however, confer any intellectual property right over the machine’s output, whose protection remains governed by the ordinary conditions of copyright.

Interaction with existing rights

The Regulation expressly preserves intellectual property rights and trade secrets: information transmitted to the market surveillance authorities, the AI Office or notified bodies is covered by a duty of confidentiality, and the documentation required must not lead to the disclosure of source code or protected parameters.

Key points

The Artificial Intelligence Act does not alter copyright law but requires providers of general-purpose models to comply with text and data mining reservations and to publish a summary of the training data, while imposing the marking of generated content. Rightholders must express their reservations in machine-readable form in order to benefit from it. Developers must document their compliance policy and verify the lawfulness of their sources before placing any model on the Union market.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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