What it is
Directive (EU) 2019/790 on copyright in the Digital Single Market was adopted on 17 April 2019 (OJ L 130, 17.5.2019) and had to be transposed by Member States by 7 June 2021. It defines text and data mining (TDM) as “any automated analytical technique aimed at analysing text and data in digital form” and creates two exceptions:
| Article | Who benefits | Opt-out? |
|---|---|---|
| Article 3 | Research organizations and cultural heritage institutions, for scientific research | No |
| Article 4 | Anyone with lawful access | Yes: rights holders can reserve rights “in an appropriate manner”, such as machine-readable means for online content |
Link to the AI Act
AI Act Article 53(1)(c) requires GPAI providers to have a copyright policy, including identifying and respecting Article 4(3) reservations. Article 53(1)(d) requires a public summary of training content. ISO, for example, now states in its licence that it opts out of the Article 4 exception.
Case law developments
| Case | Court and date | Key point |
|---|---|---|
| Kneschke v LAION | Hamburg Regional Court, 27 Sep 2024 | Dismissed under the research exception; suggested a plain-language opt-out could suffice |
| Kneschke v LAION (appeal) | Hamburg Higher Regional Court, 10 Dec 2025 | Appeal dismissed; a plain-language opt-out is not machine-readable; further appeal to the Federal Court of Justice allowed |
| GEMA v OpenAI | Munich Regional Court I, 11 Nov 2025 | Lyrics memorized in the model count as reproduction; TDM exception does not cover it |
| Like Company v Google (C-250/25) | CJEU, referred 3 Apr 2025 | Whether LLM training is reproduction and whether Article 4 covers it; pending |
The trend is toward a stricter view of what counts as a machine-readable opt-out, and toward treating memorization as reproduction.
Reuse terms
EU legislation on EUR-Lex is reusable under Commission Decision 2011/833/EU; only the Official Journal text is authentic. Commission press materials are CC BY 4.0. We could not read the EUR-Lex legal notice page itself during this check.
What it means for AI and RAG
- Check for machine-readable opt-outs (for example robots.txt and metadata) before collecting EU content.
- Record lawful access and opt-out status per source.
- Do not rely on the research exception for commercial products.
- Limit verbatim output to reduce memorization and reproduction risk.
- Watch the CJEU ruling in C-250/25 and the German appeal.
Common mistakes
- Assuming Article 4 covers all commercial AI training.
- Treating a plain-language website notice as irrelevant, or as automatically sufficient.
- Ignoring national transpositions, which vary.
- Forgetting that RAG outputs can reproduce works.
Checklist
- Opt-out checks before collection
- Lawful access and opt-out status recorded
- Copyright policy aligned with AI Act Art. 53
- Output length controls
- Case law tracked
How AskDona helps
AskDona works on documents you are entitled to use and returns short, cited evidence rather than full text, which supports a cautious copyright posture.
Run a sample evidence-cited document check
AskDona shows the evidence; your legal team decides.
Editor’s note. This article is general information, not legal advice. Case summaries rely on law firm reports. The “conditions to check” rating is our first-pass judgment.
FAQ
Is AI training allowed under EU copyright law? Under Article 4, text and data mining of lawfully accessible works is allowed unless rights holders have opted out appropriately.
What is a machine-readable opt-out? A reservation machines can interpret; a German appeal court held in December 2025 that plain-language notices do not qualify.
Does the AI Act refer to the Directive? Yes. Article 53(1)(c) requires GPAI providers to respect Article 4(3) opt-outs.
Is there a CJEU ruling? Not yet. Case C-250/25 is pending.
References
All pages opened and checked by October 26, 2026.
| Source | What it supports |
|---|---|
| EUR-Lex: Directive 2019/790 (PDF) | Articles 2, 3, 4; OJ reference |
| Commission: Transposition deadline (IP/21/1807) | 7 June 2021 |
| AI Act Service Desk: Article 53 | Copyright policy duty |
| Technology’s Legal Edge: Kneschke v LAION (Dec 2025) | Appeal ruling |
| Taylor Wessing: GEMA v OpenAI | Munich ruling |
| Stephenson Harwood: CJEU C-250/25 | Pending reference |
| ISO: Licence agreement | ISO Article 4 opt-out |