Performance protection and AI

Ancillary copyrights as "minor copyrights", how AI infringes them and what problems arise for press publishers in particular.

Ancillary copyrights are the legal minus to copyrights: They protect the work of persons or organizations who are not authors but who nevertheless contribute to the creation or distribution of content. For example, this could be a publisher who publishes a book or a producer who finances a film. This refers to activities that are not directly related to the work itself. These persons are not protected by copyright, but they are not completely unprotected. The Copyright Act refers to the rights in these cases as “related rights”, §§ 73 ff. UrhG.

Effect and duration of performance protection

As a rule, all services necessary for the production of the work are specifically protected; the exact scope of protection is determined by the corresponding property rights. The intellectual property rights grant the relevant persons decision-making power with regard to the use, reproduction and distribution of the work – in accordance with the author himself.

Infringements lead to injunctive relief and claims for damages. In some cases, the infringer may even face criminal prosecution, although the claims are not nearly as far-reaching as those of the author.

Overall, there are small but significant differences to copyright protection. Unlike copyrights, ancillary copyrights can also be claimed by legal entities and are fully transferable to other (legal or natural) persons. The protection concept here is the economic and/or organizational performance, not the relationship to the work itself. Furthermore, ancillary copyrights do not permit any modification or adaptation of the work; this is still reserved for the author.

Protection begins with the publication of the work, the term of protection in turn depends on the type of work in question and can vary between one and up to 70 years.

The following persons can invoke ancillary copyrights under the Copyright Act: Press publishers (print and online media), producers of films, sound recordings or databases, performing artists (e.g. actors), broadcasters, event organizers and film distributors.

In particular: publishing law

AI models, which are currently very popular, can pose a significant threat to ancillary copyright. In an open letter to EU institutions, press associations have called for significantly greater transparency with regard to the use of AI text generators. The integration of the chatbot ChatGPT into the internet search engine Bing puts the press associations at a particular disadvantage. Google had also announced similar plans.

There are two main problems for press publishers: on the one hand, AI-generated texts are not identified as such, meaning that readers are generally unable to distinguish between human and machine-generated content. This significantly lowers the public’s perception of the journalists’ actual performance.

On the other hand, AI can access online media in conjunction with search engines and summarize them in such a way that the user no longer needs to click on the actual source.

Falling click numbers mean a lower ranking for the press publisher’s website and a loss of advertising revenue. AI can even access articles for which the reader would actually have had to take out a paid subscription – so this also results in financial losses.

In the letter, the press associations therefore propose that (1) a labeling requirement be introduced for AI-generated content and (2) the AI pay license fees to publishers as part of search engine integration in order to be able to use their content in a permissible manner. Without a proper license chain, access to the press products and, above all, further distribution by the AI would violate the publishers’ ancillary copyrights.

Lack of justice: Search engine AI may use facts without a license

The current legal situation stipulates that the use of merely the factual representation contained in other press products is permitted even without a license agreement. Whether and how the legislator will make adjustments in the future is still unclear. It does not seem fair that real (human) journalists should do the laborious work of compiling facts and that search engine AI should be allowed to access them without any license. This is likely to have a major impact on the day-to-day business of many publishers, as this approach by AI deprives press publishers of any advantage that the provision of content on the internet previously brought.

Focus on AI & copyright

In our thematic focus “AI & Copyright“, we deal with the copyright aspects of current developments in the field of artificial intelligence. So far, this series has included introductions to the applications ChatGPT and the use of AI art, an overview of the terms of use and training data of popular AI image generators and the Mandelbrot debate in the context of the legal discussion. We shed light on the concerns and fears of press publishers in the article“Ancillary copyright and AI” and explore the fundamental question of whether AI can be an author in a separate article.

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