In response to the rapid growth in demand for artificial intelligence (AI) technologies, the EU has created its legal framework, which includes Directive 2019/790/EU on the copyright of 17 April 2019 and the new EU Regulation 2024/1689 (AI Act) of 13 June 2024. This is a separate legal framework dedicated exclusively to AI issues. However, the possibility of training AI based on someone else’s intellectual and creative work, which is the subject of copyright, is still a topic of debate. Despite the lack of direct regulation of machine learning, Articles 3 and 4 of Directive 2019/790/EU establish exceptions for the so-called deep analysis of text and data (text and data mining, hereinafter - TDM). The possibility of equating TDM and machine learning AI remains a controversial subject in the scientific literature, as the latter is rapidly developing and introducing increasingly sophisticated mechanisms. In this article, based on a technical analysis, it was determined that machine learning is significantly different from TDM, both in its purpose and in the quantity of processed data and the quality of this processing. It was found that the AI Act did not add certainty to the issue raised, without regulating machine learning in its essence. The article also emphasizes the debatability of the regulation proposed in Directive 2019/790/EU, according to which it extends its scope to the process of machine learning. The article focuses on the provisions of Directive 2019/790/EU on legal access to content and the rights reservation mechanism. The article also examines the Hamburg court’s decision in LAION v Robert Kneschke of September 27, 2024, in which TDM was equated with machine learning and considered through the prism of Directive 2019/790/EU. The paper also separately examines Ukrainian legislation, which has already begun to be brought into line with EU regulations. As was determined, this process requires special caution in transposition, taking into account compliance with Ukraine’s international obligations and potential threats.
O. R. Shaluhina (Mon,) studied this question.