Europe's Top Court Adviser: Gemini's Use of News Reports May Infringe Copyright Under Certain Circumstances
In an opinion issued in the case brought by Hungarian website operator Like Company against Google, Advocate General Szpunar of the EU Court of Justice held that Gemini may infringe publishers' reproduction rights when it bypasses paywalls to obtain news content in its answers, or reuses the specific form of expression of reports in an identifiable way. He also noted that copyright does not protect mere facts in news reports, only their specific form of expression; using copyrighted material to train large language models is permitted under the current text and data mining exception. The opinion is not legally binding, but judges on the court usually refer to and adopt it.
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The EU Court of Justice adviser distinguished news facts from the form of expression, and noted that training large models on copyrighted material is permitted under current exceptions.
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Europe's top court adviser: Google Gemini's use of news reports may infringe copyright
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If the court ultimately rules against Google and requires the tech giant to pay for the use of news media content, it could bring new survival opportunities to online media such as Like Company. As news summaries generated by AI chatbots such as Gemini increasingly replace the search results provided by traditional search engines, which usually contain hyperlinks to the original news articles, the website traffic received by online media is continuously declining.
According to a statement issued by the CJEU, Szpunar said: "When a chatbot powered by a large language model (LLM) obtains an article from a news publisher's website, uses it to generate an answer, and provides that answer to a user, under certain circumstances it may infringe the rights enjoyed by the news publisher."
He pointed out that if a chatbot obtains news content by illegally bypassing paywalls or other technical restrictions, or if it reuses the specific expression of a news report in an identifiable way in its answer, then the answer generated by Gemini may involve infringement of the publisher's reproduction right.
However, he also stressed that copyright rules do not protect the "mere facts" involved in news reports, but only the specific form of expression adopted for those facts. In other words, the facts in a news report are not themselves protected by such copyright, but the journalist's specific verbal expression of the facts may be protected.
On the other hand, Szpunar believes that the use of copyright-protected material to train large language models is "permissible" under the existing text and data mining exception. Large language models are a type of artificial intelligence system that generates human-like answers and summarizes information by learning from massive amounts of text data.
It should be noted that opinions issued by the Advocate General of the CJEU are not legally binding, but the court's judges usually refer to and adopt such opinions.