“Report on the review of the Copyright in the Digital Single Market Directive / Targeted initiative for a better copyright environment for European creativity and innovation”

This initiative by the Directorate General CNECT – Unit I.2 and under the lead of EP Vice-President Henna Virkkunen is the kick-off to new adjustments of EU’s copyright framework related to generative AI – and marks a Make-or-break-moment: The (Gen)AI industry, in particular, views the initiative with great alarm and fears, amongst other concerns, a revision of the TDM exception – which it has to date interpreted in its favour – as well as new obligations regarding licensing and remuneration. The legal view that text and data mining was not, and is not, intended for AI-related processes may finally be heard in Brussels.

The EWC took part within the Call for Evidence and submitted the following response:

The European Writers’ Council (EWC) is the world’s only federation representing exclusively authors in the book sector. Our response is based on feedback from our 55 member organisations across 34 countries and 260,000 individual members, on a) the impact of the CDSM Directive and b) policy options as set out in Ares(2026)4845636.

A) The CDSM Directive has failed to achieve its intended effect, particularly within copyright contract law and the elimination of the digital value gap.

Contractual provisions are dysfunctionally implemented and lack enforcement mechanisms. Negotiating positions for authors have not been strengthened; full transparency of uses remains absent or weak in some Member States (MS); remuneration, esp. from commercial as well as non-commercial digital uses has decreased rather than increased. Exceptions, esp. within the scope of Art 4(3), are overinterpreted and misused, ranging from non-EU tech companies to CHI granting access to out-of-commerce works under Art 8 for AI without authors’ consent. In many MS, Art 5 has been implemented without compensation, and thus turns authors into subsidy payers for ailing state budgets. Appropriate remuneration remains wishful thinking. Advance payments are only obtained by 42% of writers. Overall, their remuneration has declined since 2021; proportionate remuneration was not implemented everywhere; there has been no increase in royalty share for fifty years despite inflation. Proportionate remuneration in streaming of e-books and audiobooks is impossible, due to the lack of transparency by distributors. The largest gap in transparency concerns digital loans: 85% of authors get no figures from commercial and non-commercial (e.g. public libraries) e-lending. Plus: Only 10% of MS have put mediation protocols in place.

• Further evidence:
  • https://europeanwriterscouncil.eu/writers-contracts-ewcsurvey-2024/
  • https://europeanwriterscouncil.eu/cdsm_surveyresults2022/

B) It has been proven that the TDM exception(s) were not intended for the development of (generative) AI; also, TDM is not equivalent to any AI-related processing, neither in terms of IP law nor from a technical view.

This excessive overinterpretation has led to the loss of billions in investment by the European book sector; machine-generated output is cannibalising markets, rendering European works invisible and devaluing human labour.

The EWC calls upon the European Commission to:

1. Seek remedies for the damage caused by copyright infringement and hold AI providers, deployers, collectors accountable and liable.
2. Remove the non-applicable TDM exception(s), to allow entirely voluntary and negotiable licensing by authors against appropriate and proportionate payments, without posing any further “AI exception” or mandatory licensing upon authors and further rightsholders.
3. Only full transparency is key. Usage documentation by any AI developers, commercial and non-commercial, shall include sources, acquisition, exploitation of protected book works title by title. AI products imitating books shall be labelled without exemption.
4. Make transparency requirements for all digital uses, e.g. e-lending, audio book streaming, enforceable against distribution companies, national libraries or educational institutions.
5. Adjust competition law to allow authors’ associations to publicly provide advice on contracts and fees.
6. Point out to the CHI digitising OOCW, that Art 8 does not permit to transmit authors’ works to AI developers;
7. Facilitation of scientific research and cross-border collaboration is already provided by functioning licensing, therefore, further copyright exceptions or an EU-wide secondary publication right are not solutions as this, again, would undermine authors’ rights and income;
8. E-Lending by PL is already a market harm, damaging authors’ income (See https://europeanwriterscouncil.eu/2501_elending_study_germany/), therefore, further exceptions would deepen the imbalance.

The Call was open until 25th of June under https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/18173-Targeted-initiative-for-a-better-copyright-environment-for-European-creativity-and-innovation_en

Related resources:

• EWC’s Position Paper on the 5th Anniversary of the CDSM-Directive
• The EWC responses on the evaluation of the CDSM Directive 2026

• EWC Analysis of the adopted EP resolution on “Copyright and generative artificial intelligence – opportunities and challenges

• Scientific Analysis: Text and Data Mining is not the same as AI development

• Thesis Paper: Generative AI is built on theft