Desafíos actuales de la Inteligencia Artificial

Enforcing AI regulation in France: a legal framework beyond the AI act 59 profoundly affect AI-related markets and provide enforcers with additional tools to regulate them. 15 At the same time, discussions around copyright are gaining importance in the context of the development of generative AI applications and their underlying foundation models. In- deed, such models require training on very large datasets, but developers have been accused of training them on copyrighted materials. In this regard, the 2019 Directive on Copyright in the Digital Single Market (CDSM) 16 allows reproductions and extractions for text and data mining under specific conditions. 17 What is at stake is the tension between the ability to inno- vate and the protection of authors. The AI Act follows this approach by requiring providers of general-purpose AI models to put in place policies to comply with EU copyright rules, including with the text and data mining exemption under the CDSM. 18 This is particularly relevant for the news media, which have first had to adapt to the devel- opment of the internet, then to digital platforms, and now see a threat from generative AI appli- cations. In fact, the French competition authority has imposed a fine of €250 million on Google in March 2024 for breaching commitments in a case where the tech company was found to have infringed the French law transposing the CDSM and aimed at ensuring fair negotiations between online platforms, press agencies, and publishers. 19 The regulator also found that Google’s AI ser- vice Bard (now renamed Gemini) utilised content from press agencies and publishers without notification or opt-out options, hindering their ability to negotiate fair remuneration. 20 This case highlights how competition and copyright issues are equally relevant for AI regulation. that we have already in the AI world. We are looking at the issues very closely, from all angles and with all our tools” (EUROPEAN COMMISSION, “Speech by EVP Margrethe Vestager at the European Commission workshop on ‘Competition in Virtual Worlds and Generative AI’”, 28 June 2024, https://ec.europa.eu/com- mission/presscorner/detail/en/speech_24_3550) . 15 For instance, after the German competition authority had innovated in 2019 by considering personal data handling by dominant firms, finding Meta had inappropriately combined personal data across its AI-driven services (Bundeskartellamt, decision B6-22/16 of 6 February 2019), the DMA now also considers such conducts by gatekeepers (Article 5(2)(b) DMA). 16 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130, 17.5.2019, p. 92-125. 17 Under Article 4(3) CDSM, rightsholders can reserve their rights to prevent such mining unless it is for scientific research. If rights are reserved, AI model providers must obtain authorisation from rightsholders for text and data mining. This possibility for rightsholders to opt-out from the exemption of copyright protection has been criticised for going precisely beyond copyright protection. Instead, by allocating property rights for AI’s “buil- ding blocks” the EU legislator appears to have adopted a “property-right approach to the regulation of AI” (MARGONI, Thomas; KRETSCHMER, Martin, “A deeper look into the EU text and data mining exceptions: Harmonisation, data ownership, and the future of technology”, GRUR International (2022) 71(8), p. 688). 18 Article 53(1)(c) AI Act. 19 Autorité de la concurrence, décision 24-D-03 du 15 mars 2024. 20 This fine represents more than what the CNIL has ever imposed in a single year for GDPR infringements, to date.