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AI and copyright: how to anticipate the risks?

nathalie dreyfus Written by Nathalie Dreyfus25/06/2025

AI-Generated creations: the question of human originality

The primary condition for copyright protection is originality, defined as the expression of the author’s personality. This condition automatically excludes any creation entirely generated by artificial intelligence, which cannot qualify as a natural person.

In France and throughout the European Union, the legal position is clear: only a human being can be considered the author of a work. Directive 2001/29/EC and the French Intellectual Property Code (articles L111-1 et seq.) confirm this approach.

The first European court decision on this issue was issued on October 11, 2023, by the municipal court of Prague. The court denied copyright protection for images generated using DALL·E, on the grounds that no human creative contribution was demonstrated.

It is therefore essential to distinguish between the exclusive use of AI to produce content and the use of AI as a tool assisting a human creative process. In the latter case, copyright protection may be available, provided a sufficiently substantial personal contribution can be demonstrated, such as through the drafting of the prompt and the selection of the final output. This principle is reaffirmed by the U.S. Copyright Office in its report to Congress and the general public, “Copyright and Artificial Intelligence,” with Part I, “Digital Replicas,” published in July 2024, and Part II, “Copyrightability,” in January 2025.

Training AI: the use of existing copyrighted works

A major legal issue today concerns the training of generative AI systems. These systems are fueled by billions of data points (texts, images, music, etc.), many of which are protected by copyright. The central question is whether such use can occur without prior authorization.

Directive (EU) 2019/790, transposed into French law in 2021, introduced a specific exception to copyright infringement for “text and data mining” (TDM). Under certain conditions, this exception allows for the automated extraction and analysis of large volumes of copyrighted texts or images to identify patterns, correlations, or trends. Its goal is to facilitate research and innovation, particularly in the field of AI, without requiring prior authorization from rightsholders unless they have expressly objected to commercial uses.

Two regimes therefore coexist:

  • TDM is mandatory for public scientific research. In practical terms, this means that copyright owners cannot oppose the exploitation of their protected works when this is carried out as part of a scientific research activity conducted by public or non-profit bodies (such as universities or research institutes).
  • TDM may be excluded for commercial uses if rightsholders have expressly opted out or if a contractual clause so provides.

Text and Data Mining regimes

In the case LAION v. Robert Kneschke, No. 310 O 227/23, ruled on September 27, 2024, by the Regional Court of Hamburg, the TDM exception was upheld in favor of LAION. The organization was accused of using one of the photographer’s images, originally uploaded to the Bigstockphoto platform, as part of a dataset to train image-generating AI.

Although Bigstockphoto’s terms of use explicitly prohibited automated use, the court recognized that LAION met the criteria for the scientific research exception under Section 60d of the German Copyright Act (transposing Directive 2019/790), finding that the organization acted on a non-commercial and public-interest basis.

Legal framework and transparency in ai systems

To address the growing challenges of AI, regulations have multiplied to better protect intellectual property rights. Regulation (EU) 2024/1689 of June 13, 2024, establishes harmonized rules on artificial intelligence. It imposes enhanced transparency obligations for general-purpose generative AI systems. As of August 1, 2025, providers must:

  • Publish a summary of the training data used (to the extent possible without disclosing trade secrets);
  • Maintain technical documentation and training logs;
  • Respect copyright, notably through opt-out mechanisms.

This regulation is a significant step forward for rightsholders, as it enables the identification of unauthorized data uses and may support licensing claims.

In parallel, French authorities, including the CNIL and the CSPLA, have engaged actively with the AI Act, detailing implementation methods and evaluating AI systems under the GDPR, particularly in terms of processing fairness and algorithmic transparency.

Towards fair remuneration for rightsholders

The widespread use of copyrighted works to train AI systems generates undeniable economic value and raises a central question about the remuneration of creators.

In response, French press publishers (Le Monde, AFP, Le Figaro, among others) have initiated actions against companies such as X (formerly Twitter) and Microsoft, asserting their neighboring rights and seeking fair compensation.

The ADAGP (Society of Authors in the Graphic and Plastic Arts) advocates for collective sector-specific licensing systems with equitable redistribution mechanisms.

Some companies had already anticipated this shift. Adobe, for example, offers a library of licensed AI-generated images, and OpenAI has signed licensing agreements with several international publishers.

These practices suggest a promising balance between technological innovation and respect for authors’ rights.

Conclusion

Copyright law remains a fundamental tool for regulating the rise of generative AI. By combining human creative input, data traceability, appropriate licensing, and respect for legal exceptions, businesses can secure their use of AI while promoting innovation. Upholding these principles protects both rightsholders and AI users.

Dreyfus Law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus Law firm is partnered with a global network of lawyers specializing in intellectual property.

Nathalie Dreyfus with the assistance of the entire Dreyfus team.

FAQ

  1. Can an AI-generated work be protected by copyright?
    No, unless a sufficiently creative human contribution can be demonstrated.
  2. Can generative AI models be trained on copyrighted works?
    Yes, provided the TDM exception applies or a valid license has been obtained.
  3. Can rightsholders object to their works being used by AI?
    Yes, through an opt-out or by contractually prohibiting such use.
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Are there copyrights on the online resale of video games?

Written by Antony24/06/2025

The resale of digital video games raises significant legal issues, primarily related to licensing agreements and copyright. Unlike physical games, digital games are subject to strict rules prohibiting their resale, a practice consumers might naturally expect given the intangible nature of these products. This article analyses the legal reasons behind this prohibition and the consequences for consumers and market players.

Legal issues surrounding the resale of digital video games

The nature of digital video games

Digital video games are purchased and downloaded through online platforms. One of the main distinctions from physical games is that consumers do not actually purchase the game, but instead obtain a usage license that grants them the right to use the game for a set period, without becoming the owner of the game or its content.

These licenses are personal and non-transferable. The terms are specifically outlined in the agreements that users accept upon purchase. It is due to this lack of ownership that it is legally impossible to resell an online video game.

Licensing agreements and copyright protection

Video games are protected by copyright, which grants the publisher exclusive rights to distribution and use, as outlined in the Intellectual Property Code. This explains the strict restrictions associated with them.

Licensing agreements serve to protect these rights and limit the use of the games within the framework set by the publisher. For publishers, this is an effective means of controlling the distribution of their works and preserving their economic model.

The absence of a second-hand market for online video games: a consequence of copyright law

Exhaustion of rights and its limits in the digital video game sector

The exhaustion of rights principle is an important concept that allows a physical item to be resold freely after its first sale, provided that the sale occurred within the European Union. However, this principle does not apply to intangible goods, such as digital video games.

Indeed, according to Article 4 of Directive 2001/29/EC on copyright, the exhaustion of rights applies only to tangible items, not to services or digital products like video games. This rule is intended to protect the interests of publishers and prevent the uncontrolled circulation of digital products.

tangible assets digital assets

Jurisprudence and the absence of a resale right

The Court of Cassation recently clarified the issue of the exhaustion of the distribution right for an online video game in its judgment of October 23, 2024 (n° 23-13.738), rejecting the appeal by the UFC-Que Choisir association against Valve Corporation regarding the resale of digital video games on the Steam platform, where the general terms prohibited resale and the transfer of accounts or subscriptions purchased on the platform.

The court confirmed that video games are complex works that include graphic, sound, and narrative elements, protected by Directive 2001/29/EC on copyright, rather than Directive 2009/24/EC relating to computer programs. This distinction aligns with earlier CJEU rulings, which clarified that the exhaustion of rights applies only to tangible objects, not digital products.

Several decisions confirm this trend, notably including:

  • Nintendo (January 23, 2014): in this case, Nintendo sued PC Box for selling downloadable video games online. Nintendo challenged the resale of copies of its digital video games without its authorization, after consumers had downloaded the games via a download code.
  • Tom Kabinet (December 19, 2019): Tom Kabinet, a Dutch website, set up a marketplace for reselling digital copies of e-books. The case concerned the legality of reselling these copies after their initial purchase.

The future of video game resale online

Possible legislative changes

In the context of potential European legislative reforms, some argue for relaxing the rules regarding the resale of digital video games. In 2021, the European Commission launched a public consultation to explore legislative reform options for the digital market. However, the economic model of publishers and the protection of copyright remain key issues that delay in-depth reform.

Certain consumer-friendly initiatives, such as the creation of more flexible, potentially transferable licenses, could reconcile the interests of publishers and users, creating a controlled resale system on authorized platforms.

The role of distribution platforms

Online video game distribution platforms, such as Steam or PlayStation Store, play a central role in regulating the market for digital video games. While these platforms sometimes offer sharing or exchange systems, they still limit the free resale of games. Their policies are driven by the licensing agreements negotiated with publishers and developers.

Conclusion

The prohibition of the resale of online video games is mainly due to the structure of licensing agreements and copyright law. Video game publishers maintain strict control over the distribution of their digital products, preventing the creation of a second-hand market. While some legislative changes could relax these restrictions, the current framework continues to favor the economic interests of publishers over consumer rights.

Dreyfus Law firm assists its clients in managing complex intellectual property cases, offering personalised advice and comprehensive operational support for the full protection of intellectual property.

Dreyfus Law firm works in partnership with a worldwide network of lawyers specialising in Intellectual Property.

Join us on social media!

Nathalie Dreyfus with the assistance of the entire Dreyfus team.

 

FAQ

  1. Why can’t digital video games be resold?
    Digital video games are governed by licensing agreements that prohibit their resale, due to their copyright protection.
  2. What is a video game license?
    A video game license is a contract between the consumer and the publisher, allowing the consumer to play the game under specific conditions, without owning it.
  3. Are there any exceptions to the resale ban for digital video games?
    In some cases, a perpetual license may allow for the transfer of usage rights, but these situations are rare, and permissions must be explicitly stated.
  4. What are the legal risks of reselling digital video games online?
    Unauthorized resale may lead to legal action for infringement of copyright and licensing agreements.
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Copyright and trademark in wine packaging and labeling

nathalie dreyfus Written by Nathalie Dreyfus17/04/2025

Key considerations for wineries and wine businesses in the United States

Wine labeling is more than just listing the varietal, region, or vintage—it’s a creative and strategic endeavor that shapes a winery’s public identity. Elements such as labels, logos, colors, fonts, taglines, and even bottle shapes can become critical assets, each subject to complex legal protections. In the United States, two primary areas of intellectual property (IP) come into play: copyright (for creative works) and trademark (for brand identifiers). When properly leveraged, these legal tools can protect a producer’s investment in design and branding, deter counterfeiters, and bolster a winery’s reputation in a crowded market.

This article delves into copyright and trademark laws as they affect the packaging and labeling of wine, highlighting the interplay with Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations, and offering practical guidance for ensuring comprehensive protection of your label designs.

The importance of packaging and labeling in the wine industry

Brand differentiation and market perception

  • Visual Identity: In a sector where numerous bottles vie for attention on retail shelves, your label and packaging are often the first points of consumer engagement. A carefully crafted design can influence purchasing decisions.
  • Storytelling and Heritage: Many wineries infuse their labels with elements reflecting their history, terroir, or family legacy. Whether it’s a depiction of a vineyard landscape or a stylized crest passed down through generations, these creative visuals become a key part of the wine’s story.

(Stat Note: According to data from the Wine Market Council, up to 70% of wine-buying decisions are made in-store based on label appeal and perceived brand quality.)

The convergence of art and commerce

Wine labels transcend mere product description, often functioning as miniature works of art. This dual function—practical (identifying the wine) and artistic (evoking themes, emotions, stories)—can lead to overlapping legal protections under copyright law (protecting creative expression) and trademark law (protecting distinctive brand elements).

Copyright protection for wine labels and packaging

What copyright covers

Copyright in the United States protects “original works of authorship fixed in any tangible medium of expression.” For wine labels, this typically applies to:

  • Illustrations, graphics, and artwork: Any unique drawings, images, or decorative elements.
  • Photographs: If the label features original photography of a vineyard, estate, or other subjects.
  • Textual designs: Certain stylized text arrangements that reflect creative authorship, beyond merely stating the wine’s variety or region.

Under 17 U.S.C. § 102, you automatically hold the copyright to your label from the moment it’s created in a fixed form. However, registering the work with the U.S. Copyright Office (copyright.gov) offers additional legal benefits, including the ability to seek statutory damages and attorneys’ fees if you prevail in an infringement lawsuit.

Registration benefits and best practices

  • Enhanced enforcement: Registered copyrights provide a clear record of authorship and ownership.
  • Public notice: By registering, you publicly assert your claim, deterring would-be infringers.
  • Copyright notice: Including a notice (e.g., © [Year] [Owner Name]) on the label strengthens your position, though it is not mandatory for protection.

(Practical Tip: Some wineries register new label designs as soon as they’re finalized, particularly for high-end releases or limited-edition bottles that rely heavily on unique artwork.)

Limitations of copyright in labeling

Copyright protects creative expression, not functional or factual aspects. Consequently:

  • Mandatory statements: Label elements required by TTB regulations—such as alcohol content, origin, net contents—cannot be copyrighted. They are considered functional or factual.
  • Generic or descriptive terms: Words that merely name a varietal (e.g., “Cabernet Sauvignon”) or region (e.g., “Napa Valley”) are not subject to copyright protection.

Trademark protection in wine labeling and branding

Distinctive elements eligible for trademark

Trademarks can protect a wide range of “source identifiers,” such as:

  • Brand names and winery names: For instance, “Silver Oak” or “Jordan Winery.”
  • Logos and stylized text: A custom emblem or stylized brand wordmark.
  • Taglines or slogans: Marketing phrases that help consumers identify and recall your wine.
  • Bottle shapes or label configurations (Trade Dress): If they are distinctive and non-functional. For example, a uniquely shaped bottle could be considered protectable trade dress when the shape itself signifies the brand.

The role of the USPTO

In the U.S., trademark registration is handled by the United States Patent and Trademark Office (USPTO) (uspto.gov). A federal trademark registration confers:

  • Nationwide protection: Deters infringers beyond your immediate region.
  • Legal presumptions: Proof of ownership and exclusive rights to use the mark in connection with specified goods.
  • Potential for international filing: Serves as a basis for Madrid Protocol applications via the World Intellectual Property Organization (WIPO).

Label approval vs. trademark registration

It’s crucial to distinguish between TTB label approval and USPTO trademark registration:

  • TTB: Focuses on compliance with labeling regulations (alcohol content, origin, disclaimers). Approval does not guarantee any IP rights in the brand name or artwork.
  • USPTO: Examines distinctiveness, likelihood of confusion, and existing prior rights. A name greenlit by TTB might still face refusal or opposition at the USPTO if similar marks exist.

(Example: A wine label approved by TTB with the word “Sunset Ridge” could still be refused by the USPTO if “Sunset Ridge Cellars” is an existing registered trademark.)

Navigating overlaps and potential conflicts

Copyright vs. Trademark

  • Copyright covers the artistic aspects—illustrations, creative text layout, or photographs.
  • Trademark covers the brand name, logos, or distinct label designs recognized by consumers as indicating a particular source.
    These two can coexist. For instance, a visually ornate label design can have copyright protection for its artwork and trademark protection for the brand name or a stylized logo.

Confusion with geographic terms and appellations

Wine labeling often highlights regions or appellations (e.g., Napa Valley, Sonoma Coast, Willamette Valley). While these terms may be necessary to describe the product, they generally cannot serve as trademarks if they are considered primarily geographic.

  • Appellation conflicts: Groups like the Napa Valley Vintners Association actively defend the Napa name, ensuring it’s only used by wineries meeting certain AVA (American Viticultural Area) requirements.
  • Deceptive marks: A label referencing a region or type of wine (e.g., “Champagne,” “Port,” or “Burgundy”) without following legal standards or sourcing may be found deceptive by the USPTO and refused registration.

Common pitfalls

  1. Generic or descriptive brand names: A term like “Chardonnay Reserve” is unlikely to qualify for trademark registration if it only describes the wine.
  2. Overreliance on disclaimers: The USPTO may require disclaimers for descriptive words—such as “Winery,” “Estate,” or “Vineyards”—to avoid granting exclusive rights over generic or descriptive terms.
  3. Failure to monitor: Neglecting to keep an eye on new trademark filings or unauthorized uses of your art or brand name can allow infringers to establish competing rights.

Case studies, statistics, and a hypothetical scenario

Case study: artistic label dispute

A California boutique winery, “Moonlight Cellars,” hired a freelance artist to create a highly detailed label for its new Merlot. The label featured a watercolor painting of an owl perched under a moonlit sky.

  • Copyright conflict: The artist later discovered the winery had slightly modified her painting for limited-edition releases without seeking permission. She filed a copyright infringement claim.
  • Trademark overlap: The winery had successfully registered “Moonlight Cellars” as a trademark but had neglected to secure permission for derivative use of the artwork.
  • Outcome: Through negotiation, the winery purchased additional rights. This underscored the need for clear licensing agreements that address both the original and potential future uses of label artwork.

Stats on wine label design and IP registration

A 2025 report by the USPTO indicated that trademark applications within Class 33 (wines and spirits) rose by 12% year over year, reflecting the increasing number of independent labels and craft producers. Separately, the Graphic Artists Guild noted a 20% rise in requests for label design-related copyright registrations, emphasizing the growing commercial importance of visual identity in the wine sector.

Hypothetical client example: Golden Crest Wines

“Golden Crest Wines,” a Washington-based winery, launched a new Rosé line with a stylized gold crest design. They:

  1. Secured a trademark for the name “Golden Crest Wines” and the stylized crest logo via the USPTO.
  2. Registered the label artwork with the U.S. Copyright Office to protect the crest’s elaborate design and background art.
  3. Ensured TTB compliance by accurately listing the AVA and alcohol content.
  • Result: A cohesive IP strategy minimized the risks of both brand confusion and unauthorized replication of the label design.

Practical tips for protecting wine packaging and labels

Use written agreements for artwork

Whenever hiring freelance designers or agencies:

  • Clarify ownership: Decide whether you, as the winery, will own the full copyright upon creation, or whether the artist retains some rights.
  • License scope: Define if the artwork can be used across multiple product lines, websites, or future limited editions.
  • Work-for-hire provisions: In many cases, you must explicitly state that the work is “made for hire,” otherwise the artist may retain the copyright.

Conduct thorough searches before launch

  • USPTO TESS: Check for existing marks that could conflict with your proposed brand name, logo, or slogans.
  • Copyright Office records: If using stock imagery or previously commissioned art, ensure no overlapping claims or restrictions exist.
  • Appellation guidelines: Verify any TTB or AVA requirements for wording, disclaimers, or usage permissions.

Register, monitor, and enforce

  • Timely registration: File for trademark registration as soon as you decide on a brand. Similarly, register label designs or other major creative elements with the Copyright Office.
  • Monitoring new filings: Watch for potential conflicts in the USPTO Official Gazette and relevant creative marketplaces (e.g., popular design platforms).
  • Take swift action: If you spot an infringing label or brand name, consider sending a cease-and-desist letter or filing an opposition (for trademarks) or infringement suit (for copyright) where appropriate.

Plan for international protection

For wineries aiming to export or eventually tap into foreign markets (EU, UK, Asia, etc.):

  • Trademark extension: The Madrid Protocol allows you to extend your USPTO registration internationally through WIPO (wipo.int).
  • Labeling laws abroad: Investigate local regulations on disclaimers, mandatory health warnings, and protected geographical indications (like “Rioja” in Spain or “Bordeaux” in France).

Conclusion

In a competitive landscape where packaging and labeling speak volumes about your wine’s quality and origin, both copyright and trademark laws serve pivotal roles. Copyright can guard the creative essence of your label—its artwork, typography, and visual flair—while trademark secures your brand identity, ensuring that names and logos become cornerstones of consumer trust.

When carefully managed, these protections deter copycats, elevate brand perception, and may even become valuable business assets for expansions or partnerships. However, success hinges on anticipating legal hurdles, from TTB compliance to potential conflicts with existing marks or appellations.

Why work with Dreyfus?

  • Recognized Expertise: With over 20 years of experience in intellectual property and a deep understanding of wine regulations, our team assists clients in creating ironclad label strategies.
  • Global Network: We facilitate international registrations, ensuring that wineries eyeing overseas markets remain protected under multiple jurisdictions.
  • Tailored Guidance: Each winery’s story is unique. We offer strategic advice adapted to your creative vision, marketing goals, and compliance needs.

The cabinet Dreyfus et Associés is in partnership with a worldwide network of lawyers specialized in Intellectual Property.

Ready to protect your wine’s visual identity?

  • Contact us to develop a customized plan to safeguard your label and brand assets.
  • Subscribe to our newsletter for the latest legal updates in wine labeling and IP.
  • Download our practical guide, “5 Essential Tips for Copyright and Trademark Protection in Wine Labeling,” featuring case studies and checklists.

Additional Resources

Shape your wine’s story with confidence—fortify your labels and packaging using robust legal frameworks.

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Thaler v. Perlmutter: Affirmation of human authorship in copyright law

nathalie dreyfus Written by Nathalie Dreyfus09/04/2025

On March 18, 2025, the U.S. Court of Appeals for the District of Columbia Circuit rendered an impactful decision in the case of Thaler v. Perlmutter, reinforcing the principle that copyright protection is exclusively reserved for works created by human authors. This ruling has significant implications for the intersection of artificial intelligence (AI) and intellectual property law.

Introduction

The rapid advancement of artificial intelligence has revolutionized various sectors, including the creative industries. However, this technological evolution has raised complex legal questions, particularly concerning the eligibility of AI-generated works for copyright protection. The recent decision in Thaler v. Perlmutter addresses these issues head-on, providing clarity on the necessity of human authorship in copyright law.

Background of the case

Dr. Stephen Thaler, a pioneer in AI research, developed an artificial intelligence system known as the “Creativity Machine.” This system autonomously produced an artwork titled “A Recent Entrance to Paradise.” In 2019, Dr. Thaler sought to register this AI-generated artwork with the United States Copyright Office, listing the Creativity Machine as the sole author and himself as the copyright claimant.

Legal proceedings and arguments

A – Initial application and denial

The Copyright Office denied Dr. Thaler’s application, citing its longstanding policy that copyright protection extends only to works created by human authors. The Office emphasized that non-human entities, such as machines, cannot be recognized as authors under the Copyright Act.

B – District Court proceedings

Challenging the Copyright Office’s decision, Dr. Thaler filed a lawsuit in the U.S. District Court for the District of Columbia. He argued that the human authorship requirement was neither mandated by the Copyright Act nor the Constitution. The district court upheld the Copyright Office’s decision, affirming that human authorship is a fundamental prerequisite for copyright eligibility.

C – Appeal to the D.C. circuit

Undeterred, Dr. Thaler appealed to the U.S. Court of Appeals for the District of Columbia Circuit. He contended that the term “author” in the Copyright Act should encompass non-human creators, especially in the context of advanced AI systems capable of independent creativity.

Court’s analysis and rationale

A – Interpretation of author in the Copyright Act

The appellate court conducted a thorough analysis of the term “author” as used in the Copyright Act of 1976. Notably, the Act does not explicitly define “author.” However, the court examined various provisions within the Act that implicitly require human authorship:​

  • Ownership and transfer provisions: The Act presupposes that authors have the legal capacity to own property and transfer rights, capacities that machines inherently lack.​
  • Duration of copyright: Copyright protection is tied to the life of the author, a concept inapplicable to non-human entities.
  • Termination rights: The Act provides for termination rights exercisable by the author’s heirs, underscoring the human-centric framework of copyright law.

Based on these considerations, the court concluded that the Copyright Act necessitates human authorship for a work to qualify for copyright protection.​

B – Rejection of non-human authorship arguments

Dr. Thaler proposed that the work-for-hire doctrine allows non-human entities to be considered authors. The court rejected this argument, clarifying that the doctrine permits employers to be deemed authors of works created by human employees within the scope of their employment, but it does not extend authorship to machines or AI systems.

Implications for AI-Generated works

A – Human involvement in creative processes

The court’s decision reaffirms that copyright protection is reserved for works with identifiable human authorship. This does not preclude the use of AI in the creative process; however, there must be substantial human involvement and creative contribution for a work to be eligible for copyright protection.

B – Future considerations

As AI technology continues to evolve, the delineation between human and machine contributions may become increasingly complex. Future legal frameworks may need to adapt to address these challenges, ensuring that copyright law remains relevant in the age of artificial intelligence.

Conclusion

The Thaler v. Perlmutter decision underscores the enduring principle that human creativity is at the heart of copyright protection. While AI can serve as a valuable tool in the creative process, the law currently requires a human touch to confer copyright.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters.

Dreyfus Law Firm collaborates with a global network of IP attorneys to provide tailored legal solutions in the evolving field of AI and copyright.

Join us on social media !

FAQ

1 – Does AI have copyright?
No. Under current legal frameworks in the United States, France, and most jurisdictions worldwide, artificial intelligence cannot hold copyright. Copyright law recognizes only natural persons (human beings) as authors. The recent ruling in Thaler v. Perlmutter (2025) reaffirmed that a work created autonomously by an AI system without human authorship is not eligible for copyright protection. Machines are regarded strictly as tools, not as legal subjects.

2 – Why does AI pose a threat to copyright law?
AI challenges the fundamental principles of copyright, particularly authorship, originality, and legal accountability. When a work is generated autonomously without substantial human input, it becomes difficult to assess whether it qualifies for protection and, if so, who owns the rights. Additionally, generative AI systems are often trained on protected datasets without authorization, raising significant risks of massive infringement, bypassing of creators, and erosion of intellectual property value. The mass production of AI-generated content also complicates the detection and protection of authentic human works.

3 – What is the impact of artificial intelligence on the law?
Artificial intelligence has a transformative effect on legal systems, presenting both challenges and opportunities:

  • In intellectual property law, it compels a re-evaluation of the concepts of authorship, ownership, and originality.
  • In contract law, it raises issues regarding the validity of agreements negotiated or executed by autonomous agents.
  • In liability law, it prompts questions about assigning responsibility for harm caused by AI systems.
  • In data protection law, it intersects with privacy regulations and the governance of algorithmic decisions.

Legal frameworks will need to evolve significantly while preserving their core principles, to provide a fair and effective regulatory response to AI-driven innovation.

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The Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. Case: Implications for AI training and copyright law

nathalie dreyfus Written by Nathalie Dreyfus09/04/2025

Thomson Reuters Enterprise Centre GmbH et al v. ROSS Intelligence Inc., Docket No. 1:20-cv-00613 

In the rapidly evolving landscape of artificial intelligence (AI), the intersection of AI development and intellectual property rights has become a focal point of legal discourse. The case of Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. dated February 11, 2025 serves as a landmark in this context, addressing critical questions about the use of copyrighted materials in AI training processes.

Background of the case

Parties involved

Thomson Reuters Enterprise Centre GmbH and its subsidiary, West Publishing Corp., are prominent providers of legal research and information services, notably through their Westlaw platform. Ross Intelligence Inc., on the other hand, was an AI startup aiming to revolutionize legal research by developing an AI-powered platform to provide efficient legal information retrieval.

Nature of the dispute

The dispute arose when Thomson Reuters alleged that Ross Intelligence had unlawfully utilized content from Westlaw’s proprietary database to train its AI system. Specifically, Thomson Reuters contended that Ross had copied headnotes and other editorial enhancements from Westlaw without authorization, constituting copyright infringement. Ross Intelligence countered by asserting that their use of the materials fell under the fair use doctrine, a legal principle permitting limited use of copyrighted works without permission under certain circumstances.

Legal issues presented

Copyright infringement allegations

Thomson Reuters claimed that Ross Intelligence’s actions amounted to direct and willful copyright infringement. The crux of their argument was that the headnotes and editorial content in Westlaw are original works protected under copyright law, and Ross’s reproduction of these elements for commercial gain violated their exclusive rights.

Fair use defense

In response, Ross Intelligence invoked the fair use defense, arguing that their use of Westlaw’s content was transformative and served the public interest by fostering innovation in legal research. They posited that their AI system did not merely replicate the original content but utilized it to develop a novel tool that enhanced legal information accessibility.

Court’s analysis and decision

Evaluation of copyright claims

The court meticulously examined whether the materials in question were subject to copyright protection. It affirmed that the headnotes and editorial content produced by Thomson Reuters involved sufficient creativity and originality to warrant copyright protection, thereby recognizing them as protected works under the law.

Assessment of fair use doctrine

The court then evaluated the applicability of the fair use doctrine by analyzing the following factors:

  1. Purpose and character of the use: The court determined that Ross’s use was commercial and not sufficiently transformative, as it replicated the original content’s purpose.
  2. Nature of the popyrighted work: The works used were factual but included creative elements, weighing against fair use.
  3. Amount and substantiality of the portion used: Ross had used a substantial portion of the protected content, which was central to Thomson Reuters’ offerings.
  4. Effect on the market: The court found that Ross’s use could potentially supplant the market for Westlaw’s services, adversely affecting Thomson Reuters’ revenue.

Based on this analysis, the court concluded that Ross Intelligence’s use did not qualify as fair use and constituted copyright infringement.

Broader implications for AI and copyright

Impact on AI training practices

This ruling underscores the necessity for AI developers to exercise caution when using copyrighted materials for training purposes. It highlights that unauthorized use of protected content, even for innovative applications, may lead to legal repercussions. Developers are encouraged to seek licenses or utilize public domain data to mitigate infringement risks.

Future legal considerations

The case sets a precedent for how courts may approach similar disputes involving AI and copyrighted content. It emphasizes the importance of balancing technological advancement with the protection of intellectual property rights. Stakeholders in the AI industry should closely monitor legal developments and consider proactive measures, such as developing internal guidelines for content use and engaging in policy discussions to shape future regulations.

Conclusion

The Thomson Reuters v. Ross Intelligence case serves as a pivotal reference point in the ongoing dialogue between AI innovation and copyright law. It illustrates the complexities inherent in applying traditional intellectual property principles to modern technological contexts and signals a call to action for both legal professionals and AI developers to navigate these challenges collaboratively.

Need expert guidance on AI and intellectual property? Dreyfus Law Firm specializes in intellectual property law, including trademark, copyright, and AI-related legal matters. Our experts stay ahead of AI and copyright developments!

Dreyfus Law Firm collaborates with a global network of IP attorneys.

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FAQ

  1. What was the main issue in the Thomson Reuters v. Ross Intelligence case?
    The primary issue was whether Ross Intelligence’s use of Thomson Reuters’ copyrighted materials to train its AI system constituted fair use or copyright infringement.
  1. What is the fair use doctrine?
    Fair use is a legal principle that allows limited use of copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
  1. How did the court rule on the fair use defense in this case?
    The court ruled against Ross Intelligence, determining that their use of the copyrighted materials did not meet the criteria for fair use and thus constituted infringement.
  1. What are the implications of this ruling for AI developers?
    AI developers must be cautious when using copyrighted content for training purposes and should consider obtaining licenses or using public domain data to avoid legal issues.
  1. Does this case affect all AI applications using copyrighted materials?
    While this case sets a significant precedent, each situation may differ based on specific facts. It’s advisable for AI developers to consult legal experts when dealing with copyrighted materials.
  1. Can AI systems use any copyrighted material under fair use?
    Not necessarily. The applicability of fair use depends on factors such
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Latest developments in generative AI and copyright: An in-depth analysis

nathalie dreyfus Written by Nathalie Dreyfus09/04/2025

The rapid evolution of generative artificial intelligence (AI) has transformed the creation and use of content, raising complex questions regarding copyright. This article provides a comprehensive overview of recent legal actions and legislative initiatives related to generative AI and copyright, highlighting the challenges and opportunities that emerge in this dynamic landscape.

Recent legal actions in the United States

In the United States, several lawsuits have been initiated concerning the use of copyrighted works in training generative AI models.

Case of Kadrey v. Meta

In this class action lawsuit, authors Richard Kadrey, Sarah Silverman, and Christopher Golden allege that Meta Platforms Inc. infringed their copyrights by using their books to train its AI model, LLaMA (Large Language Model Meta AI). On November 20, 2023, the U.S. District Court for the Northern District of California dismissed several claims, including those for direct copyright infringement based on the derivative work theory and vicarious copyright infringement. However, the court allowed the plaintiffs’ claims related to the removal of copyright management information under the Digital Millennium Copyright Act (DMCA) to proceed, acknowledging that the plaintiffs had alleged sufficient injury for Article III standing. Subsequently, on March 10, 2025, the plaintiffs filed a motion for partial summary judgment on direct copyright infringement, arguing that Meta cannot rely on a fair use defense concerning its alleged acquisition of “millions of pirated works” used to train its model. ​

Legal proceedings against OpenAI and Microsoft

In December 2023, The New York Times filed a lawsuit against OpenAI and Microsoft, alleging that their AI models were trained using the newspaper’s articles without authorization, constituting copyright infringement. This case underscores the growing tensions between content creators and AI developers regarding the use of protected works in AI training. As of March 2025, a federal judge has allowed the lawsuit to proceed, dismissing some claims but permitting the core allegations of copyright infringement to move forward. ​

International legal developments

Legal actions related to generative AI and copyright are also increasing internationally.

Legal action in France against Meta

In France, three associations representing authors and publishers—the Syndicat National de l’Édition (SNE), the Société des Gens de Lettres (SGDL), and the Syndicat National des Auteurs et des Compositeurs (SNAC)—have initiated proceedings against Meta. They allege that Meta used copyrighted works without authorization to train its generative AI model. This is the first action of its kind in France, demanding copyright enforcement and the complete removal of data repositories used for AI training.​

Legislative and regulatory initiatives

In response to these challenges, several legislative and regulatory initiatives have been proposed or implemented.

United States: Generative AI Copyright Disclosure Act

In April 2024, U.S. Representative Adam Schiff introduced the Generative AI Copyright Disclosure Act. This bill requires companies to disclose the copyrighted works used to train their generative AI systems by submitting a notice to the Register of Copyrights at least 30 days before the public release of a new or updated AI model. Penalties for non-compliance start at $5,000, with no maximum penalty specified.

European Union: AI Act

In the European Union, the proposed Artificial Intelligence Act (AI Act), which was formally adopted on 13 March 2024, includes specific provisions designed to address intellectual property concerns related to generative AI.

Among its key requirements, the AI Act mandates that developers of general-purpose AI models, including generative AI systems, must provide detailed documentation on the content used for training, including information on whether the datasets contain copyright-protected material. This transparency obligation is aimed at ensuring that rights holders are aware of how their works may have been used.

Additionally, the Act introduces a duty to clearly label AI-generated content, enabling consumers and rightsholders to identify content created without direct human authorship.

These measures reflect the EU’s broader objective to strike a balance between fostering AI innovation and safeguarding intellectual property rights, especially as tensions grow between creators and developers of large-scale AI systems.

Conclusion

The intersection of generative AI and copyright law is a rapidly evolving field, marked by significant legal actions and legislative efforts worldwide. As AI technology continues to advance, it is imperative for stakeholders—including developers, content creators, and legal professionals—to stay informed and engaged with these developments to navigate the complex landscape effectively.

FAQs

What is generative AI?
Generative AI refers to artificial intelligence systems capable of creating content, such as text, images, or music, based on patterns learned from existing data.

Why is generative AI raising copyright concerns?
Generative AI models are often trained on large datasets that include copyrighted works, leading to concerns about unauthorized use and potential infringement.

What is the Generative AI Copyright Disclosure Act?
It is a proposed U.S. legislation requiring companies to disclose the copyrighted materials used to train their generative AI systems, aiming to increase transparency and protect creators’ rights.

How is the European Union addressing AI and copyright issues?
The EU’s proposed Artificial Intelligence Act includes provisions for transparency in the use of copyrighted materials for AI training and mandates labeling of AI-generated content.

What should companies developing generative AI models consider regarding copyright?
Companies should ensure they have the necessary rights or licenses for the data used in training their models and stay informed about evolving legal and regulatory requirements to mitigate infringement risks.

At Dreyfus Law Firm, we specialize in intellectual property law and are committed to assisting clients in navigating the complex intersection of AI and copyright. Our firm collaborates with a global network of attorneys specializing in intellectual property to provide comprehensive support.

Dreyfus Law Firm is in partnership with a global network of Intellectual Property attorneys, ensuring comprehensive assistance for businesses worldwide.

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Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd (Case C-159/23)

nathalie dreyfus Written by Nathalie Dreyfus04/02/2025

On October 17, 2024, the Court of Justice of the European Union (CJEU) delivered a pivotal judgment in the case of Sony Computer Entertainment Europe Ltd v. Datel Design and Development Ltd (Case C-159/23). This decision addresses the extent of copyright protection for computer programs under Directive 2009/24/EC, particularly concerning software that modifies variable data during program execution without altering the program’s source or object code.

Background of the case

Sony, a leading developer and distributor of PlayStation consoles and associated video games, initiated legal proceedings against Datel, a company specializing in software and devices that interact with gaming consoles. It identified that Datel was marketing products such as the “Action Replay PSP” software and the “TiltFX” device. These products allowed users to alter gameplay by unlocking features or modifying controls, achieved by running concurrently with Sony’s games and altering variable data in the console’s random access memory (RAM) during execution. Sony contended that such modifications infringed upon its exclusive rights to authorize alterations of its computer programs, as protected under Directive 2009/24/EC on the legal protection of computer programs.

Legal questions referred to the CJEU: Analysis and judgment

The Bundesgerichtshof (Federal Court of Justice, Germany) referred two primary questions to the CJEU:

  1. Scope of Protection: Does the modification of variables transferred to a computer’s RAM by a protected program, without altering its source or object code, fall within the protection afforded under Article 1(1) to (3) of Directive 2009/24/EC?
  2. Definition of Alteration: Does such modification constitute an “alteration” under Article 4(1)(b) of the Directive, which grants the copyright holder exclusive rights to authorize or prohibit any alteration of their computer program?

In its deliberation, the CJEU focused on the interpretation of “forms of expression” of a computer program as protected under Article 1 of Directive 2009/24/EC. The Court emphasized that protection extends to the program’s source code and object code, as these are the expressions that enable the reproduction or subsequent creation of the program. Conversely, elements such as functionalities, programming languages, and data file formats do not constitute protected forms of expression.

The Court concluded that the content of variable data inserted by a program into a computer’s RAM during execution does not fall within the protection conferred by the Directive, provided that such content does not enable the reproduction or subsequent creation of the program. Consequently, modifying these variables without altering the source or object code does not constitute an infringement of the copyright holder’s exclusive rights under Article 4(1)(b).

Implications of the decision

This judgment delineates the boundaries of copyright protection for computer programs within the EU, clarifying that:

  • Variable Data vs. Source Code: Alterations to variable data during program execution, which do not impact the source or object code, are outside the scope of protection under Directive 2009/24/EC.
  • Functional Modifications: Software that interacts with existing programs by modifying runtime variables, without altering the program’s code, does not infringe upon the exclusive rights of the original program’s copyright holder.

This decision has significant ramifications for developers of ancillary software, such as game enhancement tools or customization applications, affirming that certain modifications at the execution level are permissible under EU copyright law.

Conclusion

The CJEU’s ruling in Case C-159/23 provides critical guidance on the interpretation of copyright protection for computer programs, particularly concerning the distinction between protected forms of expression and permissible modifications during program execution. This clarification is essential for both software developers and rights holders in understanding the legal parameters of program modification and the scope of intellectual property rights within the European Union.

At the Dreyfus firm, we bring expertise across all areas of intellectual property, including copyright law, to provide you with the highest level of guidance and protection for your rights and innovations.

The Dreyfus firm collaborates with a global network of intellectual property specialists.

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The EU AI Act and Its Implications for Global Business

Written by Dreyfus14/10/2024

Rapid artificial intelligence (AI) technology development has created the need for clear and harmonized regulation to ensure ethical use, safety, and innovation. The European Union’s AI Act (EU AI Act) is poised to become the world’s first comprehensive legal framework regulating AI, impacting not only European businesses but global industries operating within or interacting with the EU market. This article delves into the key aspects of the EU AI Act and its far-reaching implications for global business operations.

 

Overview of the EU AI Act

The Scope of the AI Act. The EU AI Act categorizes AI systems into different risk levels—unacceptable, high, limited, low, and minimal—each requiring varying degrees of regulatory scrutiny. The legislation primarily targets high-risk AI systems that significantly impact people’s safety, rights, and freedoms. These include AI applications in healthcare, transportation, and critical infrastructure sectors.

Compliance Requirements for High-Risk AI Systems. Under the AI Act, businesses must adhere to stringent compliance requirements for high-risk AI systems. These compliance requirements include conducting conformity assessments, ensuring robust risk management systems, and maintaining transparency and accountability throughout the AI lifecycle. Companies must also prepare for regular monitoring and audits, which designated authorities across EU member states will enforce.

 

Implications for Global Businesses

Direct Impact on AI Developers and Providers. Any company developing or providing AI systems based within or outside the EU must comply with the EU AI Act if its products are used within the Union. This extraterritorial reach of the regulation means that global businesses, particularly those in tech-heavy industries, must prioritize legal compliance to avoid penalties, including fines of up to 6% of their global annual turnover.

Increased Costs of Compliance and Innovation. The need for AI system conformity assessments, data governance policies, and risk management frameworks can significantly improve operational costs. For non-EU businesses, navigating the complex compliance landscape may require engaging local legal and technical experts, further driving up costs. However, these compliance measures also encourage responsible AI development and consumer trust, potentially opening new markets for companies able to demonstrate adherence to ethical AI standards.

 

Strategic Considerations for Businesses

Risk Mitigation and Liability. Understanding the liability risks associated with AI implementation under the EU AI Act is critical for global businesses. Companies must proactively establish comprehensive risk management processes to mitigate the legal and financial risks tied to AI systems that are deemed high-risk. Compliance can help reduce liability exposure and enhance operational security.

Competitive Advantages of Early Compliance. While compliance with the EU AI Act may initially seem burdensome, businesses that invest in early compliance efforts stand to gain significant competitive advantages. These include improved consumer trust, better market positioning in Europe, and reduced risk of facing regulatory penalties. Additionally, businesses that adhere to the Act’s principles will likely see enhanced brand reputation globally as ethical AI becomes a growing concern for consumers and regulators worldwide.

 

Broader Global Impact of the EU AI Act

Influence on Other Jurisdictions. As the EU AI Act sets a global precedent, other jurisdictions, including the U.S., China, and the UK, are expected to follow suit with their own AI regulations. This cascading effect may lead to the global harmonization of AI laws, pushing businesses to simultaneously adapt their AI strategies in multiple markets.

The Role of AI in International Trade. AI has become integral to various industries, and its regulation will affect international trade agreements, especially those involving digital products and services. Global companies must prepare for AI-related clauses to appear in trade negotiations, with compliance with the EU AI Act becoming a critical element of future international agreements.

 

Conclusion

The EU AI Act represents a landmark regulatory effort that will have significant implications for global businesses. While the compliance requirements are rigorous, they offer opportunities for companies to lead in the AI space by embracing ethical AI practices. The key for businesses is to view this regulatory shift not as a burden but as a pathway to building trust and ensuring sustainable growth in the ever-evolving world of artificial intelligence.

 

Our expertise in intellectual property enables us to guide companies through the regulatory challenges related to artificial intelligence. The European AI Act imposes strict requirements for compliance, transparency, and risk management, particularly for high-risk AI systems. With our deep understanding of intellectual property and emerging technologies, we help our clients navigate this complex framework, protecting their innovations while ensuring they meet the new standards.

 

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What are the benefits of IP litigation and how can you make the most of it?

Written by Dreyfus13/03/2023

litigation, Lady of Justice, Justitia, statueIntellectual property (IP) litigation is an important tool for protecting and enforcing rights in IP assets, such as patents, trademarks, and copyrights. When an IP owner’s rights are infringed or someone else is using their IP without permission, the owner may have the right to take legal action against the offender. IP litigation can help the owner to protect their valuable IP assets, as well as their reputation and market position.

 

The benefits of IP litigation include:

 

1. Protection of IP Rights IP litigation is an effective way to protect your IP assets from infringement. It allows you to enforce your IP rights and stop unauthorized use of your IP, while also deterring future infringers. By filing a lawsuit, you can also seek damages or other relief to make up for any losses caused by the infringement.

 

2. Strengthening of IP Rights Through the process of IP litigation, you can also strengthen your IP rights. This is because the court may issue an injunction that requires the infringing party to stop using your IP or to pay you for any profits they made from using your IP. This can help to bolster your IP rights and make it more difficult for others to infringe on them in the future.

 

3. Deterrence of Unlawful Use The threat of IP litigation can also act as a deterrent to others who may be considering using your IP without permission. By demonstrating that you are willing to take legal action to protect your IP rights, you can create a deterrent effect that can help to discourage others from infringing on your IP.

 

4. Valuable Legal Remedies IP litigation can also provide you with valuable legal remedies that can help you to recover the costs of defending your IP rights. In some cases, you may be able to recover damages or other relief to compensate you for any losses caused by the infringement.

 

In addition to these benefits, IP litigation can also provide you with a sense of satisfaction that you are protecting your IP rights and standing up for what is right. It can be a powerful way to make sure that your IP is respected and protected. So how can you make the most of IP litigation? Here are a few tips:

 

1. Understand Your IP Rights The first step to making the most of IP litigation is to understand your IP rights. You should be familiar with the different types of IP protection and what rights they provide, as well as any related laws or regulations. This will help you to identify potential infringements and determine whether or not you have the right to take legal action.

 

2. Seek Professional Advice It is also important to seek professional advice when it comes to IP litigation. An experienced IP lawyer can provide you with guidance on your legal rights and remedies, as well as help you to pursue a successful legal action.

 

3. Take Action Quickly Acting quickly is key when it comes to IP litigation. You should take action as soon as you become aware of a potential infringement, as the longer you wait, the more difficult it may be to prove your case.

 

4. Gather Evidence The more evidence you have to support your case, the stronger it will be. This means gathering evidence such as documents, emails, and other records that show the infringement occurred.

 

By following these tips, you can make the most of IP litigation and protect your valuable IP rights.

 

 

 

 

 

We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets.  We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.

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How does the Chinese Hangzhou Internet Tribunal decision set the pace for copyright protection on NFTs platforms?

Written by Dreyfus08/11/2022

NFT HANGzouNFTs, or non-fungible token is one the biggest digital revolutions of our century. An NFT is a digital token operating on a blockchain.

 Because it is non-fungible, an NFT guarantees someone’s property over a digital artwork. When it is combined with an artwork, an NFT can be considered as a certificate of authenticity.

 

Although an NFT is a revolution within the digital world, some issues may be raised. In fact, what about artists’ copyrights in this digital environment? How can artists’ copyrights be protected within NFT platforms? Can an NFT platform be held liable for copyright infringement? There are many proposals for reasonable responses called forth by intellectual property attorneys.

Copyright law is meant to protect artists’ rights over their artistic or literary artworks. Particularly, copyright law protects books, musical artworks, paintings but also database.

Everybody can sell or buy digital artworks on a blockchain. Therefore, what about platforms’ liability? If every one of us can sell or buy artworks, there is absolutely no guarantee that the artworks has been put on the platform by its author. As such, it is fairly common that an artwork put on a blockchain infringes the author’s copyrights. In such case, it is crucial that the author defends for their rights in collaboration with the intellectual property attorneys.

The answer to know whether an NFT platform can be held liable for copyright infringement has been raised in the case  Shenzhen Qice Diechu Culture Creation Co. Ltd v. Hangzhou Yuanyuzhou Technology Co., Ltd a.k.a “Chubby tiger having its shot”.

In this case, Ma Qianli, the author of the cartoon at stake gave to Shenzhen Qice Diechu Culture Creation an exclusive license to use his copyright over the “Chubby tiger having its shot” artwork. Defendant, Hangzhou, owns an NFT platform. This latter authorized a third party to sell NFT derivative products of the “Chubby tiger having its shot” artwork. Shenzhen then brought a lawsuit for copyright infringement against the NFT platform.

This decision is important for two reasons. Firstly, it is the first decision where copyright infringement is involved on an NFT platform in China. Secondly, the action is brought against an NFT platform.

The first question raised by this case deals with NFT platforms liability. By definition, a blockchain is decentralized. That means that nobody nor any entity checks the identity of a person.

Therefore, NFT platforms do not check the paternity of an artwork linked to an NFT. A person can sell or buy NFT-artworks and it is not even the author nor a licensee. Hence, counterfeit artworks can freely circulate on NFT platforms, infringing artists/creators’ copyrights.

Because it is difficult to sanction platforms when a content is illicit or infringe someone’s copyright, it is rare for authors to assert their rights on the Web 3.0.

In this case, defendant raises some arguments to avoid liability. First of all, defendant mentions that his platform is a third-party platform. Artworks are downloaded by the platform’s users. This latter cannot be held liable for its users’ activities. Thus, the platform put the concerned NFT on its address form. Therefore, it fulfilled its notification/deletion obligation. At last, a platform cannot divulgate which blockchain has been used nor where the NFT is.

The Internet Tribunal refuses the arguments raised by defendant. In fact, it considers that the platform at stake is a professional platform. Consequently, the Tribunal highlighted a major distinction between NFT platforms. Here, the platform is considered as being a professional NFT platform. The underlying idea is that as soon as a platform is qualified as professional, its liability can be engaged for copyright infringement.

Even though the Tribunal does not when  an NFT platform is a professional, it can still be deduced. In fact, the platform at sake is qualified as professional because it proposed transactional services. Consequently, it is a professional NFT platform when it invoices certain percentages fees for each transaction.

Because a transaction has been made and because the platform obtained a financial gain, the platform must fulfil higher obligations when it comes to copyright protection. For example, a professional platform must proceed with preliminary examination regarding the digital artworks’ property that are sold or bought on their platforms. This activity may be efficiently conducted in collaboration an intellectual property attorney.

The Tribunal here considers that the platform failed its duty of care. In this regard, when an NFT platform is professional, it must put in place reasonable measures to check the artworks’ property once they are put on a blockchain by asking to the seller/artist to prove the artworks’ copyright.

The first Chinese NFT copyright infringement was made against a platform since the appellant could not obtain the name of the seller. Claimant, during the proceeding, asked for the seller’s identity in order to sue him for copyright infringement. Consequently, this case is not over yet.

Nevertheless, this case set the pace as for NFT platforms. This decision can be seen as a warning for every NFT platforms which will have to be careful regarding each NFT digital artworks sold or bought on their platforms.

 

SEE ALSO…

 

What are the legal issues behind the registration of Off-Chain NFTs?

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