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The convergence of artificial intelligence (AI) and data privacy law has introduced complex challenges and opportunities for businesses and regulators alike. The exponential growth of AI-powered systems, particularly those reliant on personal data, necessitates a balanced approach to innovation and compliance. This article explores how the General Data Protection Regulation (GDPR) addresses the complex legal issues raised by AI technologies, including accountability, data minimization, and lawful bases for processing, while highlighting recent case law and enforcement actions.

I – The legal foundations: AI and GDPR compliance

A – AI’s dependency on personal data

AI systems often require vast amounts of personal data to function effectively. From training large language models to deploying recommendation engines, personal data is indispensable. However, the GDPR imposes strict conditions on such processing, challenging AI developers to balance utility and privacy.

Key Issues Addressed by the GDPR:

• Lawfulness, fairness, and transparency (Art. 5 GDPR) : AI systems must be transparent in their data handling practices, ensuring individuals understand how their data is used.
• Purpose limitation (Art. 5 GDPR) : AI developers must define specific purposes for data processing and refrain from repurposing data without further legal justification.
• Data minimization (Art. 5 GDPR) : The principle mandates that only data necessary for the intended purpose is processed.

B – Lawful bases for AI data processing

The European Data Protection Board (EDPB) has clarified that legitimate interest may justify processing personal data in AI development, provided it passes a three-part test:

1. Identification of the legitimate interest.
2. Demonstration of necessity for processing.
3. Balancing this interest against individuals’ rights​​.

II – Key challenges in applying GDPR to AI

• Anonymization and Pseudonymization : The distinction between anonymized and pseudonymized data is critical in determining GDPR applicability. AI models trained on pseudonymized data remain subject to GDPR, whereas truly anonymized data falls outside its scope​.
• Transparency in complex systems : AI systems, particularly deep learning models, are often criticized as “black boxes,” making it difficult to explain how decisions are made. The GDPR’s right to explanation (recital 71) adds pressure on AI developers to enhance transparency.
• Cross-Border data transfers : AI systems relying on global data sources face scrutiny under GDPR’s strict data transfer rules. The recent Schrems II decision invalidated the EU-US Privacy Shield, compelling organizations to adopt alternative safeguards for lawful data transfers​​.

III – Enforcement and precedent: Lessons from case law

A – The OpenAI Case: Italy’s landmark fine

In December 2024, the Italian Data Protection Authority fined OpenAI €15 million for GDPR violations, including a lack of transparency, failure to verify user age, and insufficient safeguards for sensitive data. This case underscores the importance of robust compliance strategies in AI deployment​.

B – Meta platforms and data security breaches

The Irish Data Protection Commission’s €251 million fine against Meta highlighted the consequences of inadequate data breach notifications and poor system design​.

C – The European Commission’s Illegal Data Transfers

A 2025 ruling against the European Commission revealed unlawful data transfers to the US, emphasizing accountability even for public bodies​.

IV – Practical recommendations for AI developers and businesses

• Implement privacy by design and default : integrating privacy safeguards during the AI system’s design phase ensures compliance with GDPR’s data protection by design principle ( 25 GDPR).
• Conduct Data Protection Impact Assessments (DPIAs) : DPIAs are mandatory for high-risk AI systems processing personal data. These assessments help identify risks and mitigate potential non-compliance​.
• Strengthen transparency mechanisms : AI developers must provide clear, accessible privacy notices and explain automated decision-making processes, empowering users to exercise their rights effectively.
• Monitor regulatory developments : As the EU progresses with the AI Act, businesses must adapt to evolving legal landscapes to avoid penalties and maintain consumer trust.

V – Future Outlook: navigating AI’s legal landscape

The interplay between AI innovation and data protection laws will intensify as technologies evolve. The EU AI Act, set to harmonize regulations across member states, aims to create a comprehensive framework that addresses both risks and benefits of AI systems. Businesses that proactively align their operations with GDPR principles will not only mitigate legal risks but also gain a competitive edge in a privacy-conscious market.

Conclusion : Striking a balance

The relationship between AI and personal data protection exemplifies the tension between innovation and regulatory compliance. By embracing GDPR principles, businesses can harness AI’s transformative potential while respecting individual rights. This dual focus on efficiency and accountability will define the future of AI in an increasingly regulated world.

At Dreyfus Law Firm, our recognized expertise in intellectual property and new technologies is at your service to guide you through the intricate challenges posed by artificial intelligence and data protection.

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Since its inception, Dreyfus has established itself as a leader in the management of intellectual property rights (IPR) on a European scale. Faced with the rise of global trade and the growing challenges posed by counterfeiting, the company provides invaluable support to organizations of all sizes to protect and enhance their intangible assets. This article highlights recent trends in the enforcement of IPR in the European Union (EU), drawing on major jurisprudence to illustrate current challenges and solutions.

An Overview of the Fight Against Counterfeiting in Europe

The year 2023 marked a significant milestone in the EU’s efforts to combat counterfeiting. Over 152 million counterfeit items were intercepted, with an estimated value of approximately 3.4 billion euros. This represents a 77% increase compared to the previous year, highlighting the growing effectiveness of surveillance and enforcement measures, thanks to international cooperation and technological advancements.

Most Affected Product Categories

Products such as “Games,” “Toys,” and “Recorded CDs/DVDs” dominate the seizures in terms of volume. However, the rise in violations involving “packaging materials” and “labels” reveals a new trend where counterfeiters use neutral components to evade customs controls. This strategy was addressed in Coty Germany GmbH v. Amazon Services Europe Sàrl (C-567/18, CJUE, 2020), where the Court clarified the responsibilities of e-commerce platforms. Essentially, the company is not liable for trademark infringement unless it actively participates in offering or marketing counterfeit products.

Performance by Member States

Ten European countries stand out for their major contributions to seizures, with Italy taking the lead (74% of intercepted items). France, Romania, and Spain are also key players in these enforcement operations. The importance of cross-border cooperation was underscored in Top Logistics BV v. Bacardi & Company Ltd (C-379/14, CJUE, 2015), which clarified the conditions for seizing goods in transit within the EU

Transportation and Evasion Strategies

Counterfeiters exploit various transportation methods to move their products. Postal shipments account for 37% of cases, while maritime transport dominates in terms of volume, with containers holding thousands of items. This diversity underscores the need to adapt control methods to each logistical channel.

Trademarks at the Heart of Infringements

Trademarks are the most targeted rights, accounting for 84% of recorded infringements in 2023. Copyright violations (7%) and designs (3%) also raise concerns, particularly for high-profile brands.

Dreyfus: A Strategic Partner for IPR Protection

As an intellectual property specialist, Dreyfus offers key services to counter infringements:

1. Proactive Monitoring: The company uses advanced technologies to detect potential violations in physical and online markets.
2. Legal Management: With solid legal expertise, Dreyfus assists clients in IPR-related disputes by collaborating with national and international authorities.
3. Training and Awareness: By educating companies on the best prevention strategies, Dreyfus helps strengthen their internal capabilities.
4. Institutional Partnerships: The company works closely with organizations such as the EUIPO to enhance protection measures in the European market.

Future Challenges and Perspectives

Several challenges remain:

• Local Assembly: Counterfeiters use innovative strategies to assemble unbranded products in Europe, avoiding border seizures. In Nintendo v. BigBen Interactive (CJUE, C-25/16, 2018), the CJUE confirmed that intellectual property rights apply even when production stages are outsourced.
• E-commerce: The speed of online transactions complicates the detection and tracking of infringements. This issue was highlighted in Google France SARL v. Louis Vuitton Malletier SA (C-236/08, CJUE, 2010), which clarified the responsibilities of advertising platforms.
• Regional Disparities: Differences in resources and priorities among member states hinder a coordinated response. The case Comité Interprofessionnel du Vin de Champagne v. Aldi Süd (TGI Paris, 2019) illustrates the impact of variable standards on protecting geographical indications within the EU.

To address these challenges, Dreyfus advocates for a comprehensive approach based on technologies such as artificial intelligence and big data, as well as better harmonization of procedures across the European Union.

Conclusion

The year 2023 represents a turning point in the fight against counterfeiting in Europe. Thanks to a combination of concerted efforts, technological innovations, and landmark judicial decisions, the EU is better equipped to tackle these threats. Dreyfus positions itself as a key player in supporting companies in this essential battle, contributing to the protection of intangible assets and the preservation of European competitiveness. With concerted efforts and innovative solutions, it is possible to significantly reduce the impact of counterfeiting on the economy and society.

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Winning public tenders can open substantial opportunities for businesses. However, participating in these processes often involves navigating intricate intellectual property issues, particularly when delivering innovative solutions or creative services. This article provides a comprehensive guide to securing your intellectual property rights in public tenders, ensuring you retain control over your creations while meeting procurement requirements.

 Understanding the intersection of IP and public procurement

Why intellectual property clauses are important in public contracts ? Public contracts frequently involve the creation of intellectual works such as software, designs, or research. However, without well-drafted clauses, you risk losing rights to your creations. The inclusion of clear IP provisions ensures:

• Defined ownership: Establishes whether rights remain with the contractor or transfer to the public entity.
• Scope of use: Determines how the procuring entity may use the delivered results.
• Fair compensation: Reflects the value of IP rights in contract pricing.

IP in public procurement is governed by national laws and sector-specific agreements. In France, the Intellectual property Code and the public procurement code define default rules for IP ownership and transfer in public contracts. Internationally, EU directives provide harmonized principles for public procurement.

Key IP issues in public tenders

Ownership of results

The ownership of intellectual property created under public contracts varies depending on the type of deliverables and the procurement model:

• Licenses vs. ownership transfer: Default rules under French law (CCAG-PI, CCAG-TIC) often provide the public entity with a license, while exclusive transfer requires explicit contractual provisions.
• Existing works: Contractors typically retain rights to pre-existing works incorporated into deliverables, but must grant the public entity a license for operational needs.

Use of Pre-existing IP

Clearly identify pre-existing IP or know-how and establish its legal treatment:

• Declare all pre-existing elements upfront.
• Use non-exclusive licenses to prevent the loss of proprietary rights.

Confidentiality and protection of know-how

Protecting trade secrets and know-how is critical:

• Non-disclosure agreements: Ensure these are in place before tender submission.
• Restricted access clauses: Limit the use and dissemination of sensitive information shared during the tender process.

Compatibility with open data requirements

Public authorities often require results to be shared under open access frameworks. Define the boundaries for such usage, ensuring it aligns with your business model.

 Drafting effective IP clauses in tender proposals

Several steps for writing these clauses:

1. Clearly define deliverables

The contract should specify the IP status of each deliverable:

• Distinguish between bespoke developments and standardized solutions.
• State whether deliverables include software, designs, or reports.

2. Specify the scope of rights granted

Define the following:

• Territorial scope: E.g., national, European, or global usage rights.
• Duration: Temporary or perpetual rights.
• Purpose: Limit rights to specific uses (e.g., internal use).

3. Address modifications and derivative works

Explicitly regulate:

• The procuring entity’s ability to modify or adapt the work.
• Conditions for creating derivative works or sublicensing.

4. Include compensation for IP

Ensure your tender pricing reflects the value of IP rights being transferred or licensed:

• Itemize costs related to IP creation and licensing.
• Incorporate royalties for extended or expanded use.

Navigating complex scenarios

Collaborative innovation

When collaborating with public entities, co-created IP may arise. To safeguard your rights:

• Establish co-ownership agreements, detailing how rights are shared and exploited.
• Define rules for filing patents or registering designs.

Litigation and disputes

If disputes arise:

• Refer to arbitration clauses or administrative jurisdiction defined in the contract.
• Use preambles and detailed IP clauses as evidence of intent.

Handling open-source deliverables

When contributing open-source solutions:

• Verify licensing terms align with procurement requirements.
• Prevent conflicts between proprietary and open-source components.

Conclusion 

First of all, consult legal and IP professionals, as Dreyfus Law Firm, during tender preparation to:

• Draft robust IP clauses.
• Identify potential risks.

Then, review your portfolio to:

• Identify IP that may be affected by the contract.
• Ensure readiness for compliance and negotiations.

Then, benchmark standard practices in your sector for IP management in public procurement.

Finally, many procurement frameworks allow for dialogue phases—use this to clarify and protect your IP interests.

Securing intellectual property rights in public tenders requires a proactive approach, balancing the demands of public authorities with your strategic interests. By defining clear contractual provisions, understanding applicable laws, and protecting your pre-existing assets, you can safeguard your IP and build lasting value from public contracts.

Dreyfus Law Firm has been assisting clients in securing and maximizing the value of their intellectual assets. With deep expertise in intellectual property and tailored services, we ensure optimal management of your rights in public tenders and procurement.

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 FAQ

1 – How to protect your intellectual property in a contract?

To protect your intellectual property in a contract, it is essential to include specific clauses detailing the rights and obligations of the parties. Key aspects to consider include:

• Clearly defining the intellectual property covered (trademarks, patents, copyrights, trade secrets, software, etc.).
• Determining ownership of rights: specifying who owns the creations and innovations developed under the contract.
• Regulating the use of rights: setting out the terms for assignment, licensing, or usage of the intellectual property.
• Ensuring confidentiality: including a non-disclosure clause to prevent the leakage of sensitive information.
• Providing enforcement mechanisms in case of infringement (penalties, damages, termination, etc.).

A well-drafted contract helps anticipate disputes and secure the company’s intangible assets.

2 – What is an intellectual property clause?

An intellectual property clause is a contractual provision that defines the rights and obligations of the parties concerning protected creations, inventions, or trade secrets. It may cover:

• Ownership of rights: clarifying who holds the intellectual property created or used under the contract.
• Usage conditions: outlining the terms for assignment, licensing, or exploitation of the rights.
• Protection obligations: ensuring confidentiality and preventing any infringement of intellectual property rights.
• Remedies in case of disputes: specifying penalties for infringement, breach of commitments, or unauthorized disclosure.

This clause is crucial in service agreements, collaboration contracts, employment contracts, and distribution agreements to avoid legal uncertainties.

3 – What is trade secret in intellectual property?

A trade secret in intellectual property refers to a set of confidential information, methods, or technical processes that have economic value. This can include:

• Manufacturing formulas or industrial processes.
• Specific commercial or marketing strategies.
• Proprietary databases.
• Software or algorithms that are not patented.

Trade secrets are indirectly protected through business confidentiality and non-disclosure agreements (NDAs) but do not enjoy exclusive rights like patents or trademarks.

4 – How to protect your trade secrets?

Trade secrets can be protected through several mechanisms, including:

• Confidentiality agreements: signing NDAs with employees, partners, and service providers.
• Information access restrictions: limiting access to trade secrets to authorized personnel only.
• Establishing proof of ownership: documenting and dating key processes (e.g., through notarized records or deposits with specialized organizations).
• Employment or collaboration contracts: including confidentiality and non-compete clauses to prevent knowledge leakage.
• Technical security measures: securing databases, software, and sensitive documents with encryption and restricted access.

These precautions ensure the exclusivity of trade secrets and prevent unauthorized use by third parties.