Reservation of Rights (“Opt-Out”) under the Exception for Text and Data Mining for Commercial Purposes

With this statement, OSA publicly declares that it reserves the use of works of rights holders who have authorized OSA to manage these rights, by means of the reproduction and extraction of such works for the purpose of text and data mining for commercial purposes.

OSA acknowledges the development of modern technologies, particularly artificial intelligence models, and recognizes that these models require machine learning on massive datasets to function properly. It is clear that especially generative AI models need to be trained on content that is protected by copyright. Without such content, they would not be able to generate musical compositions, images, or audiovisual works. However, it is unacceptable for the providers and deployers of such AI models to profit at the expense of the creators whose works are used in this learning process.

EU law introduced a special exception for text and data mining in Articles 3 and 4 of Directive 2019/790/EU. The exception in Article 3 serves the purpose of scientific research – OSA fully respects this exception and acknowledges its benefit to society. The exception in Article 4, however, allows text and data mining for commercial purposes, which has sparked debate over its possible application by providers of commercially exploitable generative AI models. Czech law has incorporated both exceptions into the Copyright Act^[i], effective from January 5, 2023.^[ii] The commercial exception allows rights holders to opt out and prohibit the mining of their works for machine learning purposes.

OSA believes that current generative AI models generally cannot rely on this exception, as their use of copyrighted works to create content that competes with the original works and generates significant commercial gain conflicts with the legitimate interests of the authors, thus violating one of the conditions of the so-called "three-step test",^[iii] for applying such a legal exception.

In these cases, OSA exercises its statutory authority^[iv] and, on behalf of the rights holders (i.e., composers, lyricists, heirs, and publishers of musical works with or without lyrics), who have contractually authorized OSA to manage the reproduction rights^[v] to their works, reserves (“opt-outs”) the use of these works for the purposes of reproduction and extraction for text and data mining.

OSA insists that providers and deployers of generative AI models must respect intellectual property rights, and if they need to use protected works for the operation of their models, they must obtain the appropriate licensing rights. OSA was established by authors and publishers for this very purpose and is capable of granting cumulative licenses for an extensive repertoire of musical works with minimal transaction costs.

Therefore, OSA calls on the providers and deployers of such models to enter into negotiations for the conclusion of the appropriate license agreement for the use of OSA's repertoire.

^{[i] Act No. 121/2000 Coll.
[ii] The exception for scientific research under Art. 3 of the Directive into § 39d of Copyright Act and the commercial exception under Art. 4 of the Directive into § 39c of Copyright Act.
[iii] Art. 5 para. 5 of Directive 2001/29/ES and § 29 para. 2 of Copyright Act.
[iv] § 39c para. 2, § 95 para. 2 and § 99 para. 1 subpara. b) of Copyright Act.
[v] § 13 of Copyright Act.}