So our next talk here is presented by Lisa Kede about to mine or not to mine.
So welcome everyone.
Thank you very much.
Thank you very much for being here this room was packed and I'm really excited to be here
as well and this is probably not as even as much of an open source topic even though
of course there's a lot of open source going on in AI as well at the moment but I want to be
talking about some hot topics in copyright law actually which are going on at least in Germany
at the moment when we're talking about AI so most of you probably have heard about the issue
around training and using an AI model when it comes to copyright so this is at least
in Germany one of the topics that is being talked a lot about at the moment and let's just look at
the process for a second very overly simplified process of data in AI models so usually when we're
training in AI model we do need a lot of data which can be images text which can be music
code whatever can be open source code as well obviously most of the data that is being used
for AI training is obviously copyrighted which will be fed into the AI model for training so on
the left hand side is what we would call training data and the center we do have the AI model usually
embedded in some kind of an AI system such as chat GPT or any other AI system which can then be used
in turn by a user via prompting so we have input that goes into the AI model it does not necessarily
have to be a text prompt you can also have an AM model for example analyze an image for the
content have it create a caption for an image for example and then we have output which is on the
right hand side but also can be probability values but can also be text music code images whatever
so to sum it all up in order to create an AI system we need a lot of data
and to create a good system we need even more data when we're talking about generative AI systems
we usually require works what people call copyrights works so some kind of copyrighted
artwork for example where a human being has put effort into it and usually we are collecting these
works online so we have to download them to create a copy at some point of these works in order
to be able to feed them into our AI model and since we are talking about the legal aspects here
we will obviously notice that creating the copies also may be modifying the works
in most cases require a license and there we have arrived at one of the main issues in AI
use at the moment so I'll be talking about the situation in Europe since about 2021 we do have
an exception in European copyright law which was introduced by a directive so it's not
immediately binding for the member states of the EU but in 2021 each and every member state of the
EU had to implement this directive in their local copyright laws and there was one article in this
directive which is called the text and data mining exception so this exception basically requires
that the member states shall provide for an exception or limitation for the reproduction and
extraction of law for the accessible works and other subject matter for the purposes of text and data mining
it does not have a definition in here it's in another one part of this directive I'll be talking
about this in a second and it does have an additional provision which states that while they have
to be creating an exception they also have to provide for the authors to have a way to opt out
of this exception so the authors of copyrighted works should be able to declare by some kind of
reservation that they do not want their works to be used for for text and data mining so they do not
want their works to be reputuous especially for text and data mining as I said this is
based on the digital single markets except directive and it constitutes a statutory exception
so it's basically an exception which allows us to copy copyrighted works for the purposes of
text and data mining without having to obtain a license of the author and it also as I announced
has a definition of what actually is text and data mining because we are talking about AI here so
why are we talking about text and data mining all of a sudden so the definition of text and data
mining in this directive is the automated analytical technique aimed at analyzing text and data
in digital form in order to generate information which includes but is not limited to pattern
trends and correlations and when we're looking at what happens in AI I feel like the sound
vaguely familiar what we're doing when we're using AI systems especially for example when we're
using AI systems to analyze an image to figure out what is the contents of the image what would
be the good caption for this image does the image contain some kind of content that we do
and I want to display on our website for example so there's a lot of analysis of course going on
in AI and this is why a lot of scholars jumped at this text and data mining exception when the
question arose especially with the rise of all of these generative AI systems for how we can
somehow figure out why it should be allowed to train AI systems even when there's never been
a license for doing so of course as I announced there is a way to even if we assume that this is
applicable to AI to opt out of this exception so it is aimed at providing a way to opt out the use
of the copying of data for text and data mining so if people transfer this to AI a way to opt
out of having your data used for AI training it should be declared by the right holders so it doesn't
necessarily have to be the author but whoever they assign their rights to it should be declared in an
appropriate manner and machine readable in online context whatever machine readable is it is not
defined at all in this directive which will be one of the issues if we were talking in a second
and it can be declared only ex-none which mainly means for the future only so you can have your work
on the internet without any declared reservation and at some point you decide that you do not want
any more that your work can be copied for text and data mining properties you can just declare
the reservation everyone who obtains the work after that point in time have to respect your
reservation there is a discussion going on especially in Germany I don't know I was I thought
this was a good opportunity to be talking to you at this topic because I think there's a lot of people
from different countries and right now in Germany we are very much focused on what's going on in
Germany and we don't really know what's going on in the other European countries which are also
of course somehow have to be talking about this text data mining exception because it's in their
copyright law as well so the discussion in Germany for example is that there's some scholars which
would assume that text and data mining exceptions cannot be applied to AI training and AI analysis
because text and data mining is about a different kind of gathering information than it would be
in AI training I could and I cannot really relate to this kind of view because from what I know about
AI and text and data mining it would be that text and data mining in its basis is one of the
precursors of what we would be doing with AI and machine learning at some point so
there is a bit of a discussion going on in the legal landscape at the moment in Germany whether
we can use the exception for text and data mining or not and there also even has been a first
court case in Germany which I'll be talking about in a second but the discussion as I said
is going around the question of whether the use of AI so not even training of AI systems but
merely the use of AI systems constitutes text and data mining and the other question would be
whether training of AI systems would constitute text and data mining in the sense of the text and
data mining exception both of which obviously would have a huge impact because if we were to answer
these questions with a no then we would need a license for each and every copyrighted work that would
be going into machine learning models as training data and we could not for example simply
download an image from the internet and analyze it by means of a machine learning system without
the permission of the author and this is an issue especially if we are only talking about this
in our national jurisdiction because web scraping for example for training data is obviously
not something that ends at national borders because it's performed online it does not even
end at European borders but we do have a common ground to start from there so I think this is
something that we all have to discuss on a European level and where it also becomes clear that
implementing copyright in the sense of directives versus regulations is not the ideal way when we have
cross country subject matter because when we have a directive like the text like the digital
single markets directive which brought the text and data mining exception it has to be implemented
in the national jurisdictions and it can be different in each country each country could interpret
this exception differently whereas if we have a regulation such as the GDPR or the AI act which is currently
been talked about a lot this immediately is effective in each and every country of the European
union and would have to be also interpreted in the same way so there is actually some lawsuits
going on in Germany and I would love to hear about whether there are some lawsuits going on
in other European countries as well I know that there's a lot going on in the US at the moment
so there's one lawsuit I would be like to talk in about which is the first one on this list
is Kniechke against Lyon which is a lawsuit that finished in its first round in September of last
year so it's quite fresh and it's also being appeals so the final word has not been spoken
but nevertheless I think it's really interesting to see what the courts thought about AI
and the text later mining exception as of now so what was going on in this case is that a photo
producer published some of their photos on a website on the internet it was an agency website so
it was not his own website but it was a different website and on this website they also had
terms and conditions which said that automatic scraping of content of this website is not allowed
and then there's common crawl which many of you probably also know which regularly basically
it's a backup of the internet at least of HTML and metadata they do not store images for example
but thanks to all of the images and this common crawl organization provides their data set
on their website and then there's Lyon Lyon is an on-profit organization which creates
data sets for machine learning basically and they use the common crawl data set to create their own
image data set which is basically a table which you can imagine as a table of entries where each
entry would be an image and they have a URL to the image and a description of what is in the
image whether it's like for example child safe content or whether what's the caption what's
a description of the image and where you can obtain the image they do not have a copy of the
image in their data set and they are publishing the data set which is in trend being used for
example by stability AI and the photo producer of which one of those images that he published on their
website also was in the common crawl data set and currently also was in the consequently
also was in the Lyon data set did not like that their data their image was a youth in this
data set which was in turn being used by AI creators and he sued Lyon so he sued the organization
creating the data set and the court therefore had to deal with the issue of whether downloading
his image which Lyon had to download because they are creating they were using their own AI to
analyze the images for the caption so they could use the information they got out of the image for
example the caption in their data set so they had to download the image to do so and he is now
suing them for doing that because he says he claims that there are terms and conditions on this
agency website which prohibits spraping of data from the website for what ever used
constitutes the reservation according to the text and data mining exception and the court says
actually that they assume this is one of the first I think main conclusions of the case
that using AI or machine learning or any kind of software to analyze an image to get information
out of the image constitute text and data mining which would mean that the text and data mining
exception is applicable to the first of our questions and they were also talking about even though
it's not relevant to the case that they would be assuming that training in AI system would most
likely also constitute text and data mining but as I said this is not relevant to the case so it's
not legally binding and since it's being appeased or legally binding anyways and they were also
talking about the reservation even though the reservation in this case was not relevant why
because there is another provision which I haven't been talking about yet also in copyright law
which allows for research institutions which are doing nonprofit research to do text and data mining
without having to respect any reservations and they were assuming that Lyon is one of those research
institutions and they do not have to respect reservations but nevertheless they were talking quite
extensively about the reservation that was on this website and their conclusion was that even though
it's a sentence in English on a third party website in the term buried somewhere in the terms and
it constitutes a machine readable reservation according to article 4 paragraph of the text and data
mining exception which is I think amazing because I wouldn't there there reason was that
the data is being used for supposed to be used for AI training so the people who are
scraaking the data should also be using AI to analyze when a very strong kind of reservation
this is actually one of the arguments so they said that natural language nowadays is machine
readable because we do have systems that can be natural language and interpret it but they in my opinion
did not take into account was there's a lot of different ways to express a reservation so it's not
at all a help for any of the others because they do not have security on what kind of sentence
would constitute a valid reservation they can just basically write anything but then in each case
a quote would have to decide whether this sufficient sufficiently concrete enough or not and on the
other hand it's obviously a huge effort for everybody creating a crawling doing web crawling for images
because they have to search entire web sites and their sub websites and sub pages for some kind
of sentences that might say that a text and data mining is not allowed and this is obviously
very inefficient and cannot be why the EU initially put the machine readable requirement somewhere
in there and also if this stands and if the next quote also helps hold that this is actually
the case in Germany this would mean that for example in Germany it would be required to search
entire websites everybody crawling German websites would have to be checking for natural language
reservation against text and data mining but if the crawling is happening in France and France has
requirements not just that anybody could basically ignore natural language reservations but also
the author would not be protected for example in France if they were only declaring the reservation
in natural language so this is why I'm saying we do have to go for a European approach here
and it's not really helping anyone if national courts just decide about these issues and I think
I've already talked about this I compiled some kind of an overview of machine
actually machine readable reservation options you can find them online on our website
there are a lot of ideas going on for example you could be could be using the Robots TXC data
file as we've been doing for centuries almost for decades for search engines so it's a quite
good place to start then there's actually a text and data mining reservation protocol group
going on at the W3C so there are standards which are seemingly being established at the moment
and which can be used and which can be useful and if you're thinking about applying this to your
own work to your own website to for example marketing company images on your website it is I think
it's really a good idea to start by using actually machine readable reservations and the options
that are already out there so I think I talked a lot and if there's any questions and any comments
and any insight on how it's going in your country I'm more than happy to talk about this
yeah thanks for the presentation I have a question where are the limits of the state are mining
when it comes to verbatine copies and I have seen this using tools like co-pilot the GitHub
co-pilot will say give me a code for a problem blah blah blah yeah and it spits out the page of code
and then when I do the effort of trying to find where that code came from I find the page in
the internet was exactly the same code yeah so the AI speed out a verbatine copy and that code in the
internet might have a license or it might not have what's then the legal viewpoint can I say it
was generated by AI or do I have to go with the real source the thing is that it takes data mining
exception in this case wouldn't even apply because the tax and data mining exception covers
copying data as training data which would go into the AI model at some point and then if there's
a copy in the output of the AI system it's never covered and it's never covered by the
tax and data mining exception because the tax and data mining exception only allows copies which
are required to perform tax and data mining but this would be a copy which happens way after
that and this reproductions which would happen in output of the AI systems are not covered
by the tax and data mining exception okay what when question and one remark so one more place
where also these discussions about a standard for opting out our taking place is the IETF they have
a new working group called AI controls I think and a question so in order for copyright to apply
they need to be an act of reproduction so it's quite clear when you're creating a training data
sets that an act of reproduction is taking place but if the training data set is already available
and you're kind of training your AI model on the fly is there even an act of reproduction
that requires permission what is your opinion on that yeah good question I mean you do have to
obtain the data set somehow so we would have to to think about whether even if you're just
using it from a remote server this would constitute like a volatile copy or whether this is
a permanent copy and if it's a volatile copy then there's another exception in copyright which would
apply so I think this is a good question I've asked myself the same question it's not really
being discussed at the moment because I think the technical requirements are still that you have
a copy like a permanent copy somewhere but I think if it would be definitely where it works
or thinking about whether this is even relevant yeah so do you think it's I'm wondering what happens
even interest other laws so I book the university and some researchers used images available online
for training the model to predict you know or detect the level of facial palsy that was possible
and they had to stop doing it because essentially they were just looking up on an internet using
images from like you know people that posted online and other websites and the reasoning was
essentially GDPR violation was that but what they were looking to develop an AI model to kind of train
the model to the with this negate that or so this is merely a copyright exception so
do you still have to obviously observe any kind of GDPR related requirements so this does not
allow you to process personal data yeah there's copyright and then there's the state of protection
okay thank you
you