May AI use my work to train on?

Under the exception for text and data mining that is in principle permitted, but only where you have not reserved your rights and the party had lawful access to your work. If you have made an express, machine-readable reservation, your work may not be used for AI training without your consent. We can help you record that reservation in the right way.

Does an image I make with AI have copyright?

That depends on your input. Work that is generated fully autonomously is in principle not eligible for protection, because there is no human author. If you direct the result with conscious creative choices and edit it, copyright can arise and vest in you. The greater your creative input, the stronger your position.

Can I take action if AI output resembles my work?

Where the output of an AI system closely resembles your protected work, there may be an infringement. The difficulty often lies in proving that your work was used. The transparency requirements under the AI Act should make that easier in time. We assess your position and advise on the next steps.

May I use and sell work I have made with AI commercially?

In most cases you may, but there are points to watch. The work must not infringe anyone else’s copyright, and that risk exists because an AI system is trained on existing work. In addition, the terms of use of the AI tool often determine what you may do with the output, including commercially. We can help you assess whether you can safely exploit the work and what to look out for in the terms of the tool you are using.

I use AI in commissioned work. What should I agree with my client?

Record whether and how you use AI in the creative process, because clients take different views on this. Some want to exclude it, others do not. It also matters who obtains the rights in the result and who is responsible if the work unintentionally resembles someone else’s. A clear arrangement in advance prevents argument afterwards. We can help you include those arrangements in your commission agreement.

AI and copyright

The rise of AI affects copyright in two ways. AI models are trained on existing work, often without the makers knowing that their texts, music or images are being used for it. At the same time those models bring forth new material, which raises the question of who ends up holding the rights in that result. For makers, producers and publishers these are not theoretical questions, because they bear directly on the value of their work.

Liaise advises makers and creative businesses on the point where AI and copyright meet. This page sets out the legal position on training AI on protected work, on the reservation you can make as a maker, and on the copyright status of what AI produces.

Do you need legal advice straight away? Call 020 675 88 21.

May an AI model train on work protected by copyright?

To train an AI model, providers need large quantities of material. They often collect it automatically from websites, a method known as scraping. Much of that material, texts, photographs, illustrations and music, is protected by copyright. Anyone who copies protected work without the rightholder’s permission acts unlawfully in principle.

Even so, that training is not simply prohibited. The legal framework for it is the exception for text and data mining from the DSM Directive, which has also been incorporated into the Dutch Copyright Act. Machine learning is regarded as a form of text and data mining. The copying required for the training therefore does not amount to infringement, provided two conditions are met. The party carrying out the data mining must have lawful access to the work, and the rightholder must not have made a reservation.

The reservation: shielding your work from AI training

This is where the most important foothold lies for makers. The text and data mining exception applies only for as long as you, as rightholder, have made no express reservation. Where you do make that reservation, your work may not be used for commercial data mining, and therefore for AI training, without your permission.

For work online, that reservation has to be expressed in a machine-readable way, so that automated systems can recognise it. In practice that means a technical instruction attached to your website or files. We advise you on how to record that reservation properly, so that it holds up and your position is strong if you later want to act against unauthorised use.

Transparency about training data

A recurring problem with AI and copyright is proof. Even where you have made a reservation, it is hard to establish that your work in particular ended up in the training. The AI Act changes this. Providers of large AI models have to make available a summary of the material they trained on. That gives rightholders more insight into which data was used, which will make enforcing copyright easier over time. This transparency obligation forms part of the phased introduction of the AI Act.

Does copyright subsist in work made with AI?

For the output of an AI system the ordinary starting point of copyright applies: protection exists only where the work is the result of free and creative choices bearing the personal stamp of a human being. That has consequences for various situations.

Work generated wholly autonomously by an AI system, without creative direction by a human, does not in principle qualify for copyright protection. There is then no human maker making the decisive choices. Where, by contrast, you deploy AI as a tool and make the creative choices yourself, by deliberately steering, selecting and editing the result, copyright can indeed arise in you. The greater and more decisive your own creative input, the stronger your position.

Are prompts protected by copyright?

A separate question is whether the prompt itself, the instruction you give an AI system, can be protected. An extensive, detailed prompt containing clear creative choices can in some circumstances be regarded as a work. Whether it is depends on whether it contains sufficient free and creative choices bearing a personal stamp. Where AI results are further worked on, editing a generated image for instance, the end result is more readily accepted as deserving protection. This is a subject still very much in development.

How Liaise helps you

The questions surrounding AI and copyright are new and the case law is still taking shape. That is precisely why it matters to secure your position rather than wait. We help you make a valid reservation against AI training, assess whether AI output infringes your work, record your rights in work you make with the help of AI, and take action where your work has been used without permission. We do this with knowledge of the creative sector, so that the advice fits the way you work.

Do you have a question about AI and your copyright? Get in contact and you will have an answer within one working day.