On 29 September, the European Commission launched a public consultation on possible reforms to EU copyright law.
The consultation forms part of the Commission’s wider review of the 2019 Copyright in the Digital Single Market Directive, which introduced (among other things) a commercial text and data mining (TDM) exception with a rights holder opt-out in the EU. The rapid rise of generative artificial intelligence has posed significant challenges to the efficacy of the TDM exception, with rights holders facing difficulties in opting their content out of AI training. In light of this, the Commission is exploring ways to facilitate the licensing and enforcement of copyright and related rights in the AI context, while enabling AI providers to lawfully access quality copyright-protected content for AI innovation within Europe.
The consultation asks both rights holders and AI providers to give feedback on these difficulties and to rank various policy options that could address them. The options include legislative and non-legislative measures, which range from maintaining the status quo, clarifying the application of existing EU copyright rules for AI uses and operationalising the TDM opt-out, to introducing a rebuttable presumption of use of copyrighted content by AI providers in certain circumstances (e.g. where AI providers do not comply with the EU AI Act’s transparency obligations). Potential measures to facilitate AI licensing include developing model contractual clauses, promoting collective licensing and introducing a specific remuneration right.
The consultation covers a number of other topics that may be relevant to authors and publishers, including proposals relating to non-commercial scientific research exceptions (e.g. making the current, optional exception for scientific research mandatory across the EU or expanding its scope to include commercial research) and secondary publication rights (e.g. introducing an EU-wide Secondary Publication Right that would allow authors to share publicly funded research works openly and separately from the published version). It also proposes protections against AI-generated imitation of performers (see our previous update on whether existing IP rights can protect your image and persona here) and measures against online piracy of time-sensitive content (such as live events). The Commission has stressed that the consultation is not an exhaustive or final list of the measures under consideration.
Although any measures implemented following the consultation will not apply in the UK, they will impact businesses that operate in Europe and set a precedent that other jurisdictions may (or may not) choose to follow. The UK government has repeatedly considered introducing a European-style commercial TDM exception to encourage AI training and development within the UK, but it formally abandoned plans to do so earlier this year.
The Commission wants to receive feedback from both sides of the AI and copyright debate, including AI providers, authors, publishers, and other rights holders. If you want to provide your views and have not yet done so, the deadline to respond is fast approaching: the consultation closes on 3 November 2026.
Coincidentally, that is the same day that Advocate General Szpunar’s opinion in the CJEU case Like Company v Google Ireland is due to be released, which is expected to address whether training an LLM-based chatbot constitutes an instance of reproduction under EU copyright law and, if so, whether such reproduction falls within the commercial TDM exception. While not binding, the Advocate General’s opinion often provides an early signal of the direction the CJEU’s decision may take. As the first case in which the CJEU has considered copyright in the context of AI training, the CJEU’s eventual decision will have a significant impact upon the position of rights-holders and the control they can exercise over the use of their copyright-protected content for AI training within Europe. We will keep you posted.
If you would like to speak to us about how these developments may impact the publishing sector, please contact a member of our team below.