The use of copyrighted photographs to train an artificial intelligence system is lawful when carried out for scientific research purposes by a non-profit organization.
This is the decision of the Hamburg Court in its judgment of 27 September 2024, which is the first decision of the judicial Authority of an EU Member State on the use of works for the purpose of training AI.
On this point, Article 4 of the EU Directive 2019/790 (Digital Copyright Directive) provided for free use for reproductions and extractions from works or other materials to which one has legal access for the purpose of text and data extraction. However, this exception does not apply where the use of the works and other subject-matter has been expressly reserved by rightholders in an appropriate manner, for example through automated reading tools in the case of content made publicly available online (so-called “opt-outs”).
The possibility of making a declaration of reservation is not, however, provided for in the case of text and data mining activities for scientific research purposes (art. 3 Digital Copyright Directive).
In the present case, the Court considered that the training activities of the AI were for the purpose of scientific research and therefore acknowledged the inapplicability of the declaration of reservation.
