GEMA, the German collecting society for composers, lyricists and music publishers, has filed a landmark lawsuit against OpenAI, marking the first action of a major rights organization against a generative AI provider worldwide. The lawsuit alleges copyright infringement related to the use of song lyrics in the training of OpenAI's ChatGPT model.
While the statement of claim has not been made available, GEMA has published FAQs outlining its legal strategy. The case is explicitly framed as a model case to clarify open legal questions regarding the use of copyrighted works in the training of generative AI systems and to facilitate market acceptance of GEMA's newly developed licensing model for generative AI.
At the heart of the case is the allegation that OpenAI has illegally used song lyrics to train its AI models. In its FAQs, GEMA challenges the applicability of the text and data mining exception under Section 44b of the German Copyright Act (UrhG) and Article 4 of the EU DSM Directive. However, its main argument is based on an opt-out GEMA alleges to have declared on behalf of its members. The underlying authorizations are stated to have been granted to GEMA at its general meeting in May 2022.
The effectiveness of this opt-out is likely to be at the center of the case. Following GEMA’s FAQs, it could declare the opt-out in May 2022 at the earliest, so one year after Section 44b UrhG came into force. It remains to be seen whether this was timely enough should the AI training have occurred before May 2022. Furthermore, GEMA did not provide details on the declaration so that it remains unclear whether it’s opt-out declaration was effective under Section 44b (3) UrhG as regards its expressiveness and the machine-readability of the declaration.
A successful lawsuit by GEMA would likely lead to the implementation of its licensing model and the collection of standard licensing fees. The outcome will have a major impact on the legal landscape of the rapidly expanding generative AI sector and will have a significant impact on the ongoing discussion about the balance between copyright protection and rapid technological progress.
