EU Advocate General says chatbot reuse of press articles may infringe publishers' rights in Gemini case

Advocate General Maciej Szpunar of the EU Court of Justice advised on Tuesday, Nov. 3, that when an AI chatbot retrieves a press publisher’s article, reuses it to generate an answer and gives that answer to the user, the publisher’s right may be infringed in certain circumstances. The court said so in press release No. 155/26 on his opinion in Case C-250/25, Like Company v Google, which it called the first generative AI case to reach the Court of Justice. Reuters reported the opinion.

The opinion is not binding. The court said its judges are now beginning their deliberations and that judgment will be given at a later date. Reuters said such opinions are usually followed by the court’s judges.

Like Company, a Hungarian web portal operator, sued Google Ireland in the Budapest Regional Court over Gemini, alleging Google used its articles to train the models and reproduced them through the chatbot between June 13, 2023, and May 31, 2024, according to the press release. The court referred four questions, two on training and two on chatbot answers.

On answers, Szpunar said the publisher’s right protects the specific form of expression, not mere facts. Whether an answer falls under the reproduction right depends on whether the chatbot accessed the article unlawfully, in particular by circumventing a paywall or other technical measures, and whether the answer reuses the article’s form of expression “in a recognisable manner” so that the user is entirely dispensed from accessing the original, the press release said. The right of making available to the public is, as a rule, infringed where the form of expression is systematically recognisable in a chatbot’s answers to related queries, the release said. It added that, in his view, a provider is liable where such acts are inherent to its business model or it has failed to put in place appropriate measures to counter them credibly and effectively.

On training, Szpunar advised the court to declare the two questions inadmissible, because there is no evidence Like Company’s articles were used to train Gemini and training is not a form of “online use” of press publications, so the questions are hypothetical. For completeness, he suggested that using protected works to train a model is, as a rule, freely permitted under the text and data mining exception.

Reuters said a ruling against Google forcing it to pay fees could help online media, whose traffic it said has dwindled as AI summaries replace search results. Its report did not include a response from Google.

On Monday, the New York Times, the New York Daily News, the Chicago Tribune and the Orlando Sentinel sued Brave over alleged AI scraping, AI Tech Daily reported. On Oct. 30, OpenAI and Google announced plans to support a shared robots.txt signal for AI training preferences.

EU Advocate General says chatbot reuse of press articles may infringe publishers’ rights in Gemini case

Sources