AI chatbots such as Google’s Gemini may infringe copyright when they retrieve press articles from websites and use them to answer users, according to an opinion by European Court of Justice Advocate General Maciej Szpunar. The use could affect publishers’ rights to reproduce their work and make it available to the public, the court said in a statement summarising his conclusions.

The case is the first involving Generative AI to reach the court in Luxembourg. The Advocate General’s opinion is not binding on the judges, who are expected to deliver their ruling at a later date.

Szpunar said whether reproduction has occurred may depend on whether a chatbot accessed an article unlawfully, for example by bypassing a paywall or another technical restriction. He also stressed that publishers’ rights protect the specific expression of an article, not the facts it reports, and do not give publishers a monopoly over news.

A key question is whether a chatbot’s answer recognisably reuses an article’s expression in a way that leaves readers with no reason to open the original. The right to make a work available to the public would generally be infringed if that expression appeared systematically in chatbot responses, according to the opinion.

The dispute began in Hungary, where Like Company, a publisher operating several news sites, sued Google. It alleges that Gemini reproduced and made its protected articles available without permission. A court in Budapest referred questions about EU law to the European Court of Justice; the Hungarian court will ultimately decide the case and must follow the EU court’s guidance.

Szpunar considered two questions about AI training inadmissible because they were hypothetical: there was no evidence that the publisher’s articles had been used to train Gemini. He nevertheless noted that using protected works to train an AI model may be permitted under the text-and-data-mining exception, which allows automated analysis of texts and data under certain conditions.

Google said it welcomed the opinion’s comments on AI training. The company said Gemini learns language patterns to generate original content rather than reproduce existing material, and that rights holders can object to the use of their content.

Sources: Handelsblatt.