{"id":593239,"date":"2025-11-25T17:23:13","date_gmt":"2025-11-25T17:23:13","guid":{"rendered":"https:\/\/www.europesays.com\/uk\/593239\/"},"modified":"2025-11-25T17:23:13","modified_gmt":"2025-11-25T17:23:13","slug":"gen-ai-and-copyright-in-europe-munich-regional-court-seeks-to-determine-the-rules-of-the-playing-field-richard-barker-issabella-cardu","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/uk\/593239\/","title":{"rendered":"Gen AI and copyright in Europe \u2013 Munich Regional Court seeks to determine the rules of the playing field, Richard Barker, Issabella Cardu"},"content":{"rendered":"

In the recent Getty Images v Stability AI\u00a0decision, the UK High Court rejected Getty\u2019s claim for secondary infringement of UK copyright on the basis that (i) an \u201cinfringing copy\u201d, for the purposes of secondary infringement, must be \u201ca copy\u201d and (ii) Stability\u2019s AI model, Stable Diffusion, had never contained or stored copies of any of Getty\u2019s copyright works and was not therefore an \u201cinfringing copy\u201d (see blog<\/a>). However, perhaps highlighting the lack of technical and international consensus, on 11 November the Munich Regional Court, in its judgment in GEMA v OpenAI<\/a>, found that a model may contain copies of a work where that work is \u201cmemorized\u201d by the model. Of course, the models in question and the arguments before the courts were different, and neither of these decisions is final. But, they serve as an important reminder that the rules of the playing field are still being determined.\u00a0<\/p>\n

The GEMA decision also warns against widespread reliance by commercial AI developers on exceptions to copyright infringement for text and data mining (TDM<\/strong>), a message supported by a recent study report<\/a> on Generative AI and Copyright commissioned by the European Parliament\u2019s Committee on Legal Affairs (the Study<\/strong>).\u00a0<\/p>\n

In this blog, we focus on the German court\u2019s findings in GEMA and how these feed into wider conversations around (i) memorisation and (ii) the scope of the EU TDM exception set out in Article 4 of the 2019 Directive on Copyright in the Digital Single Market (TDM Exception<\/strong>).\u00a0<\/p>\n

GEMA v OpenAI<\/strong><\/p>\n

GEMA is a German music collecting society. Towards the end of last year, it issued a claim against OpenAI alleging that ChatGPT infringed copyright in a number of its members\u2019 song lyrics by reproducing those lyrics in the model itself (through memorisation) and at the output stage in response to simple user prompts.\u00a0<\/p>\n

OpenAI naturally disagreed, arguing that the lyrics were not \u201cmemorised\u201d and \u201cstored\u201d in the model and, in any event, copying was permitted under the German implementation of the TDM Exception. It also denied responsibility for any outputs, arguing instead that the individual users were responsible.\u00a0<\/p>\n

The Munich Regional Court largely sided with GEMA, finding that:<\/p>\n