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Brussels, 17 February 2025

Dear Executive Vice-President Virkkunen,

Dear Commissioner Micallef,

As representative organisations of authors and performers from all disciplines, in their capacity as creative workers and rightsholders (copyright and related rights), we write to you to express our concerns about the second draft of this Code of Practice, which was recently published and discussed.

As it currently stands, it does not show sufficient progress and fails to take into account the comments expressed by our organisations. In fact, when it comes to transparency and respect for copyright, it even appears to be taking several steps backwards.

An essential part of the mission you both received consists of closely working together to develop an AI strategy for the cultural and creative industries. During the confirmation hearings at the European Parliament, you shared the view that for what concerns AI and Copyright we need to “make sure that the rights holders’ rights and creative sector rights are respected here, and they will have also fair remuneration when their work is used”, and that “nobody should use other people’s work and make business out of that without compensation.”

In line with these statements and the provisions of the AI Act, the Code of Practice should therefore be designed to help General-Purpose AI (GPAI) providers develop and put in place a copyright policy that is in line with this objective and on which basis their compliance with the copyright acquis can be established.

However, the wording chosen in the current draft undermines this very objective and weakens the acquis. Legal obligations are limited to mere commitments to making reasonable and proportionate efforts (see measure 2.4 on lawful access), or sometimes even reduced to a mere encouragement to take into account (see measure 2.5 on known infringing websites).

Further, despite unanimous criticism from the rights holder community regarding the first draft for granting unjustified preferential treatment to robot.txt protocols as a means of opting out under the TDM exception, the second draft continues to uphold this unacceptable discrimination.

The current draft also introduces KPIs’ exemptions for SMEs, giving them the impression that they are exempt from certain copyright infringements. In doing so, the Code of Conduct is exposing the very group of providers that the EU is keen to support, to the risk of litigation and liability. We hold the view that the capacity of the model, rather than the size of the GPAI provider, is the only thing that should ultimately matter. Moreover, this questionable preferential treatment is in stark contrast to the enormous administrative burden that authors and performers, as individuals and occasionally as SMEs, have to bear to safeguard their rights.

The comments above – indicative of a carve-out from EU law – apply equally to the ‘Template for summary of training data’ that the AI OIice has been working on in parallel. The current version does not provide parties with legitimate interests a complete and clear view of the available information and how it may be accessed. As such, it runs the risk of limiting the transparency obligation to the content of the summary itself, as well as making it impossible to ascertain whether AI providers have had lawful access to the content they use.

Finally, we regret that the working method chosen by the AI Office fails to ensure meaningful stakeholder engagement and lacks transparency on who is actually participating.

The EU has taken the lead in establishing regulations for a responsible and trustworthy AI sector. The Code of Practice and the Template are important tools in achieving this objective. Unfortunately, both instruments appear to be skewed in favour of GPAI providers and primarily focused on preventing their liability.

Without urgent intervention and a change in the methodology applied by the AI Office, they will only encourage avoidance of responsibility and erode trust, ultimately undermining their very purpose. More importantly, this will lead to increased litigation and legal uncertainty for rights holders and AI providers alike.

Such uncertainty is exacerbated by the Commission’s assumption that the AI Act and the TDM exception provide a sufficiently solid foundation for achieving a workable balance between GPAI providers’ and rightsholders’ interests – although several Member States2 and academics3 question the scope of the applicability of the TDM exception to AI training, in a context where generative AI was clearly not on the table when this exception was discussed and adopted by the EU.

The impact of AI on the authors and performers we represent constitutes a systemic risk. To secure a fair balance between providing AI providers access to our cultural heritage and ensuring the protection and fair remuneration of our authors and performers, the EU should encourage the deployment of a responsible AI industry that helps human creativity remain at the heart of our culture.

We therefore ask you to urgently correct these flaws in the third draft of the Code of Practice and to develop an AI strategy for the cultural and creative industries that respects our authors’ and performers’ intellectual property rights. In cases where the use of their works is authorized, it is essential that they are fairly remunerated to ensure that human creativity continues to flourish.

To ensure that our views are heard, we would respectfully suggest that we be given the opportunity to meet with you and discuss these issues further.

Signatories

• AEPO-ARTIS
• CEATL (European Council of Literary Translators’ Associations)
• ECSA (European Composer and Songwriter Alliance)
• EFJ (European Federation of Journalists)
• EVA (European Visual Artists)
• EWC (European Writers’ Council)
• FERA (Federation of European Screen Directors)
• FIA (International Federation of Actors)
• FIM (International Federation of Musicians)
• FSE (Federation of Screenwriters in Europe)
• IAO (International Artist Organisation)
• IFJ (International Federation of Journalists)
• SAA (the Society of Audiovisual Authors)
• UNI MEI – UNI – Media, Entertainment and Arts
• UVA (United Voice Artists)