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So, if you’re intending to use an unusual, highly distinctive image generated by AI, you may want to do some duediligence to establish that there is no obvious infringement. If so, that image would infringe copyright in the original. You would be liable if you were making use of the infringing output.
This does require a violation of a duediligence obligation, however. In the view of the BGH, an infringement of the film producer’s relatedright does not require that a copyright protected part had been used. The BGH assumed that an infringement of the relatedright of the film producer had occurred.
On 19 April 2019, the European Parliament and Council adopted the Directive on copyright and relatedrights in the Digital Single Market. Even though national laws require duediligence obligations of diverse scopes, each nation’s laws and practice will ascertain the meaning of the “best efforts”.
The ‘ Dune’ scenario is a well-known ‘tale of crypto folly’ featuring NFT purchasers who failed to exercise appropriate duediligence in determining what rights are granted when procuring an NFT. The UK’s Advertising Standards Authority had emphasised this in its April 2021 guidance on advertising cryptocurrencies.
KECOBO did mention that a work may be in the public domain because copyright has expired and companies should conduct duediligence before engaging in meme creation]. Beyond the need to provide a balanced and accurate view of copyright statutes, there are positive lessons to draw from KECOBO's work as the copyright regulator in Kenya.
Before contracting with third parties for the use of data sets for GPAI model development, the Providers must conduct reasonable copyright duediligence. The Providers must create and implement an internal policy to comply with EU copyright laws, covering the entire lifecycle of any GPAI model.
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