An opinion by an adviser to the Luxembourg-based Court of Justice of the European Union, the EU’s top court, has indicated that the use of AI bots to provide users with summaries of publishers’ articles may contravene copyright law.

The case involves a dispute brought by Hungary’s Like Company against Google, initially over a summary the company said indicated unauthorised use of its content by Google’s Bard and later Gemini chatbots.

The opinion by Advocate General Maciej Szpunar indicated that the specific example used by Like Company probably did not contravene copyright law, as it appeared to be an AI “hallucination” providing fabricated facts, rather than an actual summary of one of the articles hosted by Like Company’s.

However, Szpunar’s opinion indicated that the news article summaries routinely displayed by Gemini, based on material found online, may infringe copyright.

“When an LLM (large language model)-driven chatbot retrieves a publication from a press publisher’s website, reuses that publication to generate an answer, and provides that answer to the user, the press publisher’s right may be infringed in certain circumstances,” Szpunar’s opinion said.

Those circumstances include if the chatbot evaded blocks such as paywalls to retrieve the article, or provides a summary that is close enough to the original that the user doesn’t need to read the initial article, according to Szpunar.

Chatbot summaries could violate publishers’ right of reproduction if they reuse “the form of expression of that publication in a recognisable manner”, rather than solely facts, he wrote.

He said the use of copyrighted material to train LLMs is in itself protected under EU data mining exceptions.

Google said its AI tools use linguistic patterns to create original output and don’t replicate content.

The European Publishers Council said it was important to distinguish between search indexing and providing AI answers that substitute for original content.

Legal precedent

“Publishers depend on Google to reach readers, while Google increasingly delivers AI-generated answers directly to users,” said the council’s executive director, Angela Mills Wade.

Studies have shown traffic to websites dropping precipitously when AI-generated summaries are shown to users.

The CJEU rules according to the majority of its advisers’ non-binding opinions. Its ruling is expected in the coming months.