SAA - Society of Audiovisual Authors

Recent developments from EU institutions paint a concerning picture of missed opportunities and inadequate responses. In early July, MEP Axel Voss published a draft report on Copyright and Generative AI calling for immediate remuneration obligations and full transparency from AI providers, though his proposals disappointingly maintain an opt-out approach to text and data mining exceptions that we believe fails to trigger proper licensing. This was followed by the EU Commission’s release of its General-Purpose AI Code of Practice on 10 July and a training content template on 24 July, both of which the SAA find highly disappointing despite the cultural and creative sectors’ good faith participation in the drafting process.

CMOs on the frontline

Against this backdrop of institutional inadequacy, the rotating EU Council Presidency has been keeping discussions alive among Member States. A survey of European CMOs conducted by the Polish EU Presidency reveals the challenges these organisations face as they navigate the impact of AI and digital technologies on the collective management ecosystem in the EU. The SAA was among the respondent, and we regularly discuss many of the issues with our 33 members across 25 countries to find lasting solutions that advance audiovisual authors’ rights in Europe.

The survey findings expose a system under strain. CMOs report significant licensing obstacles, as AI companies largely avoid licensing arrangements by invoking text and data mining exceptions, yet refusing to disclose their training datasets. This has led CMOs to consider the TDM exception framework to be "unimplementable" due to vague standards and unclear opt-out procedures that unfairly burden rightsholders with monitoring responsibilities.

Findings

The survey results paint a picture of a sector struggling to adapt to generative AI's disruptive force. CMOs agree that generative AI must be set apart from AI applications. It is generative AI that causes major disruption in the creative sectors.

The detection dilemma represents one of the most pressing challenges. CMOs find it difficult to distinguish between AI-generated and AI-assisted output, as there is no reliable technology that can do so. Even when such technology is available, changes in AI technology make it difficult to keep it updated. Consequently, CMOs currently rely entirely on their members' good faith to declare whether AI was used to create a work. There is a widespread consensus that AI-generated content is not eligible for copyright protection. Different remuneration practices are developing around registered AI-assisted works.

AI companies bypass licensing obligations. Licensing of works for AI training is rare, with AI companies being reluctant to license by relying on the TDM exception and refusing to disclose training datasets citing trade secrets concerns. Most CMOs agree that the TDM exception is “unimplementable” because there are no standards. The construct “machine readable means” is too vague and there is no clarity regarding how to express and who can exercise opt-outs. Many rightsholders claim that the burden to monitor the whole internet to avoid unauthorised use is unfairly placed on them.

Opinions on the feasibility of an opt-out registry differ, but transparency emerges as a universal demand. The burden of proof to demonstrate the non-use of protected works should fall on AI companies. Many CMOs believe regulatory intervention is necessary to achieve this, though others prefer to wait and assess the implementation of the AI Act and the Code of Practice.

Collective licensing represents the emerging consensus solution. Many CMOs support the introduction of extended collective licensing (ECL), since rightsholders have lost control of their works. Some Member States and a CMOs suggest a mechanism similar to private copying. The overwhelming majority of CMOs view collective licensing as the most practical solution given the scale and complexity of AI training, paired with CMOs’ proven capacity to manage large repertoires.

However, a critical gap persists since - again - licensing is rare and no framework exists for assessing the value of work used for AI training. Despite the various positions of CMOs, there is a consensus on the necessity for transparency: without it, any type of evaluation of the works used remains impossible.

The power imbalance defines the challenge ahead. CMOs are recognized as important for ‘increasing the bargaining position with AI service providers’, even when they represent smaller repertoires, which might translate into more rare works. However, this bargaining power must be paired with a robust legal framework. Most stakeholders believe AI companies hold too dominant a market position and would maintain a strong position even in front of CMOs with large repertoires.

Looking forward

Despite these challenges, there are encouraging signs. The Polish Presidency believes “licensing and remunerating rights holders are essential for the continued development of the copyright ecosystem”, hence marking an important acknowledgement of CMOs’ work. Denmark, which took over the EU Presidency on 1 July, has committed to advance AI and licensing discussions with both Member States and stakeholders. The SAA and its members expect to be consulted and heard equally during the Danish Presidency, as we were during the Polish term. The continued dialogue between the EU Parliament, Presidencies, Member States, and stakeholders suggests that while the challenges are vast, the commitment to finding workable solutions remains.

About the survey

At the end of June, the Polish EU Council Presidency presented the responses from European CMOs and Member States to its questionnaire about AI and digital technologies challenges. This survey continued the initiative first launched by the Hungarian Presidency to advance Member States’ policy discussion on AI and copyright and to inform the European Commission. The Polish Presidency specifically focused on collective management, consulting with CMOs and Member States about best practices and challenges. Denmark’s takeover on 1 July aims to further advance this crucial debate with a new questionnaire.  

Annica Ryng

Public Affairs and Communication Director, SAA