The Challenge of Balancing Artistic Autonomy and AI Training – Evaluating the Effectiveness of the Opt-Out Mechanism under Art 4(3) DSM Directive for Artist Protection

The introduction of Article 4 of the DSM Directive was intended to create a commercial exception for text and data mining. The intention behind the article was to foster innovation and to create a legal framework to accommodate this. However, the article is not very well drafted, particularly in relation to the rise of generative AI and the training of AI systems. The article contains a reservation of use clause that allows authorsauthors to opt-out of the use of their works for text and data mining. The absence of an EU standard of opt-out declaration creates certain complications.

The AI Act initially seemed to constitute a promising solution, but the opportunity to eliminate legal uncertainties was not utilised. Instead, there is a high chance of blocking future technological innovations.