I. Introduction
“It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife”.Footnote 1 While this might have been engraved in the minds of many during Jane Austen’s times and still hold true to some more or less enlightened contemporaries today, in the age of Artificial Intelligence (‘AI’) there is another truth that is perhaps even more universally acknowledged: an AI modelFootnote 2 must be in want of large amounts of “data” to be trained and, thus, ensure a good fortune to its developer.
Such “data,” more often than not, includes content protected by copyright, related and/or sui generis rights (including the European Union (“EU”) database rightFootnote 3 ). It is not difficult to see why: training done on high-quality texts, audio, videos, and images – including newspaper articles, songs and compositions of professional songwriters, audiovisual content of video makers and production companies, works of artists and photographers, etc – allow for the resulting model to generate high-quality, up-to-date, and accurate outputs.
It is appropriate to spell out a further, twofold truth that is (or, perhaps, should be) universally acknowledged: the first is that copyright is not an opt-out system, i.e., a system by which the rule is that rightholders must “reserve” their rights for their content not to be used by third parties, including in the context of training and activities (e.g., scraping and text and data mining (“TDM”)) that are preparatory to it.Footnote 4 Copyright grants its holder a proprietary set of rights, which are preventive in natureFootnote 5 : a third party wishing to undertake a restricted act must either hold a licence or be entitled to protection under an applicable defence. The second truth is that copyright is relevant to AI training processes. As also recently acknowledged by the US Copyright Office, “[t]he steps required to produce a training dataset containing copyrighted works clearly implicate the right of reproduction” and “[t]he training process also implicates the right of reproduction.”Footnote 6
Insofar as AI training is concerned, the discussion of whether and how to strike a balance between licensing and exceptions is one of global relevance. Over the past several years, there have been: (i) countries that have adopted statutory exceptions to allow TDM at specific conditions, including Japan (Article 30-4 of the Copyright Act), Singapore (Section 244 of the Copyright Act 2021), the United Kingdom (“UK”) during its tenure as an EU Member State (s29A of the Copyright, Designs and Patents Act 1988 (“CDPA”)), other EU Member States,Footnote 7 and the EU through the adoption of Directive 2019/790Footnote 8 (“DSMD”); (ii) countries that have been discussing legal reforms to either introduce exceptions (e.g., Hong KongFootnote 9 ) or broaden existing exceptions (e.g., the UKFootnote 10 ) for TDM; and (iii) countries that, so far, have not considered adopting any new legislation. The latter is the case of the United States (“US”), where the existing fair use doctrine under section 107 of the Copyright Act 1976 has servedFootnote 11 and will continue to serve to determine the lawfulness of unlicensed TDM and AI training activities.
At the EU level, the DSMD introduced two TDM exceptions, both premised on prior lawful access to the protected content in question and framed within the requirements of the three-step test. One (Article 3) is for the benefit of research organizations (“ROs”) and cultural heritage institutions (“CHIs”) and requires that the TDM is carried out for the purposes of scientific research. The other (Article 4) does not pose restrictions in terms of either beneficiaries or the purposes of the TDM in question but allows rightholders to “opt out” of the exception by reserving their rights. The latter aspect has received significant attention, possibly because Article 4 – as opposed to Article 3 – is perceived to have broader relevance and application than Article 3, due to the lack of restrictions on beneficiaries and purposes of the TDM at hand.
The current UK reform debate also appears to be premised on such an understanding, prompted by the consideration that the exception found in s29A CDPA (which, at the time of writing, remains unapplied in case law, meaning that its scope has not yet been tested) might put the UK at a competitive disadvantage compared to other legal systems, including the EU.Footnote 12 While the UK provision (unlike Article 3 DSMD) does not envisage restrictions in terms of beneficiaries, it requires (again unlike Article 3 DSMD) that research be done by human researchersFootnote 13 “for a non-commercial purpose.” That said, like the EU exceptions, the UK provision does not extend to the subsequent transfer of the copies made during the TDM process or the communication of the results of the TDM-based research. It is also framed within fair dealing, this being a notion that mirrors the requirements of the three-step test found in international and EU law.Footnote 14
The starting point of this study is the following, two-fold observation. First, TDM may be part of AI training processes, but it is neither synonymous with AI training nor is it all that AI training entails, including in terms of acts restricted by copyright and related rights.Footnote 15 Second, from a European (thus including both the EU and the UK) perspective, focusing on Article 4 DSMD alone to treat unlicensed TDM and AI training is myopic.
As the recent decision of the District Court of Hamburg in LAION Footnote 16 demonstrates, Article 3 DSMD has also the potential to be largely – and inappropriately – relied upon in the context of unlicensed TDM and subsequent AI training practices.Footnote 17 That is so for two key reasons: the possibility – expressly allowed by the DSMD itself – for the beneficiaries of the exception to collaborate with third parties, including commercial AI developers; and the potentially (over)broad construction of key notions like “research organization” and “scientific research.” The Hamburg court did not consider either aspect in any detail, concluding instead that the defendant organization qualified as a RO entitled to protection under the German transposition of this EU provision. The court also unduly conflated the notion of TDM, which is solely what Article 3 DSMD covers, with that of AI training. Overall, an exclusive or even predominant focus on Article 4 DSMD and the technical and legal complexities surrounding rights reservation under paragraph 3 therein distracts from the circumstance that commercial AI developers might shift their attention towards Article 3 DSMD instead, also to explore and test the extent to which they might be collaborating with ROs and CHIs without having to incur in the limitations of Article 4, specifically the reservation possibility under paragraph 3.
Two additional preliminary observations should be made. The first is recent calls advocating a relaxation of EU copyright rules to facilitate “research,”Footnote 18 seemingly including the President of the European Commission herself, who also announced forthcoming legislative proposals “to make Europe the home of innovation again.”Footnote 19 The second is that the UK Government’s Copyright and AI consultation has recently ended. Should no reform be ultimately undertaken, the application of s29A CDPA will depend to a large extent on how courts construe the notions of “research” and the “non-commercial” requirement thereof.
Moving from the above, this study investigates whether and to what extent unlicensed AI training activities could be undertaken by relying, not on Article 4 DSMD as transposed into national law or a hypothetical reform of the UK system of exceptions, but rather on what appear to be so far potentially overlooked defences. Reference is made specifically to research and education exceptions, notably Article 3 DSMD and Article 5(3)(a) of the InfoSoc Directive, from which the current UK exception in s29A CDPA descends, also read in light of Article 5 DSMD and the resulting extended scope of the InfoSoc provision. Another exception that might be potentially relevant is the one for temporary copies under Article 5(1) of the InfoSoc Directive/s28A CDPA. Nevertheless, it will not be examined in detail, given that it is generally accepted that such a defence would hardly be applicable in the context of AI training, including because of (but not limited to) the requirement of lack of independent economic significance of the copies made.Footnote 20
The focus is primarily on EU and UK laws, although the discussion of other jurisdictions – including the US and countries, like South Korea and Singapore, which have adopted an open-ended fair use-style defence – is also undertaken. This is done to determine whether unlicensed AI training, including training seemingly done for the purpose of research or education/learning, might be eligible for the application of the relevant open-ended, fair use-style defence.
In light of the above, this study tackles two key questions: (a) whether and, if so, under what circumstances unlicensed AI training may be considered tantamount to “research” or even learning in the context of “teaching,” and (b) whether commercial AI developers can take advantage of the provisions above. Ultimately, both questions are answered in the negative: there is no exception or open-ended defence that fully covers unlicensed AI training activities.
The analysis is structured as follows: Part II briefly reviews the history of Articles 3 and 4 DSMD, as well as the current UK reform discourse; Part III focuses on Article 3 DSMD, providing a normative construction of key concepts like “scientific research,” “research organization,” and “cultural heritage institution,” as well as the possibility and limits of collaboration between the beneficiaries of the exception and third parties. Part IV turns to Article 5(3)(a) of the InfoSoc Directive (also in light of Article 5 DSMD), including the notions of “non-commercial research” and “teaching” (and learning). Part V considers whether unlicensed TDM and AI training activities, including those seemingly undertaken for purposes of research and learning, may lead in principle to a finding of fair use. As noted, reference is made in particular to the US, Singapore, and South Korea. Part VI explains why no defence exempts AI training wholesale, also considering the requirements of (i) “lawful access” to protected content used in the context of TDM and AI training and (ii) the framing within the three-step test/fair dealing. The study concludes that, to address and remove the legal risk associated with AI training, including training initially undertaken for the purpose of “research” and “learning,” the development of a licensing approach is already and will ultimately be unavoidable, not only for developers seeking to launch their models in the EU.
II. Beyond Article 4 DSMD: Exceptions for unlicensed AI training under EU and UK laws
In line with the 2015 Communication Towards a Modern, More European Copyright Framework,Footnote 21 the 2016 European Commission’s ProposalFootnote 22 (“DSMD Proposal”) for what would be eventually published as the DSMD in 2019 did not contain any provision allowing subjects other than ROs to carry out unlicensed TDM for scientific research purposes (Article 3 of the Proposal). It was in the context of the subsequent legislative process that the inclusion of such a provision began to take shape.
Specifically, the Council textFootnote 23 adopted as negotiating mandate ahead of the trilogue negotiations contained language allowing, like the Parliament text,Footnote 24 individual Member States to maintain their own exceptions, including in the fields of research and innovation. Again, aligned with the Parliament text, the Council text suggested broadening the catalogue of beneficiaries of the original TDM exception also to encompass CHIs. Crucially, unlike the Parliament text, the Council text proposed introducing an additional, optional exception for TDM, which would be without prejudice to the one in Article 3 of the Proposal and would be in respect of the rights in Article 2 of the InfoSoc Directive, Articles 5(a) and 7(1) of the Database Directive, and Article 11(1) of the Proposal (now Article 15 DSMD) for reproductions and extractions of lawfully accessed works and other subject-matter that form a part of the TDM process. Such an exception would apply subject to a rights reservation possibility. Eventually, an additional TDM exception was included in the directive and made mandatory for Member States to transpose into their own legal systems. This way, Article 4 DSMD was born.Footnote 25
1. Article 4 DSMD and the possibility of rights reservation
The rationale of Article 4 DSMD is encapsulated in recital 18 of the preamble to the DSMD and is linked to a threefold consideration: first, the relevance of TDM practices outside the context and purpose of scientific research; second, the consideration – key to the understanding of Article 4(3) – that licensing opportunities should not be unduly affected by the introduction of an additional TDM exception besides the one in Article 3; third, the need to remove legal uncertainty in connection with reproductions and extractions made for TDM purposes outside of the scope of application of other exceptions, including the one for temporary copies in Article 5(1) of the InfoSoc Directive.
Besides being premised, as noted, on the requirements of lawful access and compliance with the three-step test, as well as only being an exception to specified restricted acts undertaken for TDM purposes, Article 4 allows rightholders to reserve their rights in accordance with the requirements of paragraph 3 and recital 18. The nature of the rights reservation under Article 4(3) has been widely discussed, including in connection with the prohibition of formalities under Article 5(2) of the Berne Convention.Footnote 26 While this is not the appropriate forum to review this aspect in greater detail, it is nevertheless necessary to note that the meaning of Article 4(3) is not that, unless rightholders reserve their rights, any protected content may be used for TDM/AI training or other purposes without the need for a licence. Instead – and plainly – the meaning is that the exception under the proviso shall be applicable, provided that all the relevant requirements therein are also fulfilled.
Having clarified the above, the issue of how rights reservation ought to be done remains debated,Footnote 27 including in the aftermath of the release of the long-awaited Code of Practice and pending its final adoption.Footnote 28 It has also given rise to seemingly inconsistent approaches in the few cases decided so far on this matter. In 2024, the Amsterdam District Court and the Municipal Court of Appeals of Hungary suggested that an appropriate reservation would be one done in the programming language robots.txt,Footnote 29 while the Hamburg court in LAION indicated that a natural language reservation should also be deemed appropriate, on consideration that crawlers do understand natural language.
Another matter that proves contentious concerns the allocation of the burden of proof regarding reservation. While the general rule is that, having demonstrated prima facie infringement, it is for the defendant to prove that their behaviour satisfies the conditions under an applicable exception and is, thus, not infringing, who needs to prove whether the rights reservation done was appropriate or not is not fully resolved. In the already mentioned Dutch decision, the court considered that it was for the claimant, and not the defendant, to demonstrate that their rights reservation had been appropriate. The correctness of such an approach is debatable, given that the rights reservation is still a condition – although of a negative kind (that is: something that the rightholder did not do) – for the exception to apply. Appropriately, it should then be again for the defendant to bear the burden of proof, not the claimant.
The discussion above has highlighted but a couple of key uncertainties currently surrounding Article 4, its construction, and practical application. Such uncertainties also mandate the need for a broader perspective, including by considering other exceptions and their potential applicability to unlicensed TDM/AI training. In the European context, two exceptions will be reviewed in detail: the one for TDM under Article 3 DSMD, which for example the Hamburg court eventually deemed applicable in LAION, and the one for research and education under Article 5(3)(a) of the InfoSoc Directive/s29A CDPA. They will be discussed in more detail in Parts III and IV, respectively.
2. The UK reform discourse
On 17 December 2024, the UK government launched its Copyright and AI consultation, seeking views on the application of UK copyright law to the training of AI models “to unlock growth, innovation and protect human creativity.”Footnote 30 Despite the uncertainties surrounding the construction of Article 4 DSMD as highlighted above, the proposed UK approach could be closely modelled after EU law: a new exception might be introduced into the CDPA to allow – like Article 4 DSMD does – TDM on lawfully accessed content for any purpose, subject to the possibility for rightholders to reserve their rights. Greater transparency about the sources of training material might be also imposed, again taking inspiration from EU law (notably Article 53(1)(d) of the AI Act).Footnote 31 The consultation closed on 25 February 2025, attracting over 11,500 responsesFootnote 32 and the input of several stakeholders, including high-profile artists opposing reform plans.Footnote 33 At the time of writing, the official response of the UK Government and any follow-up initiative are pending.Footnote 34 Contrary to the pleas made by some stakeholders, again including high-profile artists, the recently adopted Data (Use and Access) Act 2025 does not contain any transparency obligations, the justification being that this legislation differs and is separate from an official response to the already mentioned public consultation.
The 2024–2025 consultation is not the first time that the UK has considered reforming s29A CDPA, whose content and scope mirror and owe to the constraints that, at the time of its adoption in 2014 (further to the recommendations of the 2011 Hargreaves ReviewFootnote 35 ), the UK faced under EU law. Further to the UK departure from the EU and the decision not to transpose the DSMD into UK law,Footnote 36 a debate emerged as to whether the 2014 provision should be reformed. In mid-2022, the UK Intellectual Property Office announced that the Government would consider broadening the scope of the defence for unlicensed TDM activities and introduce a new exception allowing TDM for any purpose (including commercial TDM) and also applicable to databases, subject to a lawful access requirement.Footnote 37 In 2023, however, the then Minister for Science, Research and Innovation announced that such plans had been halted, due to the diverging views and the overall lack of support for such a reform.Footnote 38 The 2024–2025 public consultation thus invokes a feeling of déjà vu. Should in the end no reform be undertaken this time either, the way s29A CDPA is interpreted and applied, including regarding the notion of “research for non-commercial purposes,” will be key. All of this will therefore need to be addressed in detail in Part IV.
III. Object and scope of Article 3 DSMD
As discussed above, the TDM exception for scientific research was initially the only one envisaged in the DSMD Proposal. Recital 8 in the preamble to the DSMD acknowledges, on the one hand, the value and potential of TDM and, on the other hand, notes the restrictions that copyright and related rights pose to the doing of TDM activities without a licence, thus also putting an end to the discussion whether TDM would be even relevant under copyright and related rights.Footnote 39 Recital 10 further highlights the insufficiency of the then existing framework, due to both the optional nature of exceptions to copyright and related rights for scientific research purposes and the then limitations of licensing agreements. As such, the intervention of the EU legislature would serve to remedy the legal uncertainties surrounding TDM (recital 11) through the introduction of a mandatory, non-compensated exception for universities and other ROs, as well as for CHIs, to the exclusive rights of reproduction and to the right to prevent extraction from a database. In line with EU research policy, which encourages universities and research institutes to collaborate with the private sector, the preamble (recital 11) notes the need for ROs also to benefit from the exception in Article 3 when their research activities are carried out in the framework of public-private partnerships.
Against this background, it is necessary to define the notions of “scientific research,” “research organization,” and “cultural heritage institution,” as well as to address the types and limits of collaborations between the beneficiaries of the exceptions and third parties under the provision. It is uncontroversial that, in accordance with basic rules of interpretation consistently followed by the CJEU, all these concepts qualify as autonomous concepts of EU law.Footnote 40
1. Scientific research and beneficiaries of the exception
The DSMD does not define the notion of “scientific research.” Recital 12 merely states that the term “scientific research” encompasses both natural and human sciences. In light of the rationale of the exception, the notion of “scientific research” needs to be considered alongside the definition of TDM in Article 2 No 2 and be intended to include any activity aimed at generating information that allows uncovering new knowledge or insights that are based on or characterised by the methods and principles of science.Footnote 41 In other words, “research” means the “diligent and systematic inquiry or investigation into a subject to discover facts or principles.”Footnote 42 This construction of the notion of “scientific research” is in line with settled CJEU case law, which requires considering at the outset the usual meaning in everyday language of a term, “while also taking into account the context in which it occurs and the purposes of the rules of which it is part and, where appropriate, its origins.” Footnote 43 The end goal of the scientific research activity at issue may not be relevant per se. Footnote 44 That is because, unlike Articles 5 and 8(2) DSMD, Article 3 is not limited to non-commercial TDM. In this sense, the exception under Article 3 has a broader scope than national TDM exceptions adopted pursuant to Article 5(3)(a) of the InfoSoc Directive. In practice, however, commercial research might be excluded from the application of Article 3, considering that the subject who performs the TDM at issue may fail to qualify as a RO or CHI.
Turning to the beneficiaries of the provision, the notion of “research organization” is defined in Article 2 No 1. It includes organizations conducting scientific research or educational activities that involve scientific research. Despite different legal forms and structures across the EU, ROs generally have in common that they act either on a not-for-profit basis or in the context of a public-interest mission recognized by the State. Such a public-interest mission could, for example, be reflected through public funding or through provisions in national laws or public contracts. In any event, as clarified by recital 12, where a third party (e.g., a commercial undertaking) has a decisive influence on the RO, e.g., through their qualification as shareholder or member, which could (even just potentially) result in preferential access to the results of the research, then such an organisation shall not be considered a “research organization” for the purposes of Article 3. In all of this, it will be hardly enough to declare one’s own mission non-profit and then pursue interests that are contrary to the law or merely private. In relation to the latter, it will be thus insufficient simply to receive public research grants: a formal recognition from a competent public authority also appears required. As an example, it is questionable that an organisation like LAION could even be regarded as eligible in principle for the application of Article 3 protection, given that it does not enjoy any formal recognition as a RO. Yet, the Hamburg court did not conduct any meaningful inquiry in this respect.Footnote 45
Having regard to CHIs, such a notion is tackled in Article 2 No 3 through an open-ended list of entities that should be recognized as such. The wording mirrors that of the Orphan Works Directive,Footnote 46 and the list refers to establishments that share the characteristic of holding in their collections works and other subject-matter classified as cultural heritage.
Overall, what is clear from the above is that the notion of “scientific research,” while encompassing different fields and applying in principle to commercial and non-commercial research alike, should be construed with regard to both its everyday meaning and who the beneficiaries of the provision are. In turn: the notion of “research organization” may encompass different types of organisations, which need to act on either on a non-profit basis or in the context of a public-interest mission recognised by the State; the notion of CHI refers to establishments which hold works and subject-matter that can be qualified as cultural heritage.
For Article 3 to be potentially applicable, the TDM needs to be done by an undertaking that qualifies as RO or CHI specifically in the context of their non-profit or public interest mission and for purposes of generating new knowledge and insights through the application of scientific methods. Activities like crawling/scraping may not even be regarded as tantamount to “scientific research,” nor may the creation of datasets subsequently used for training purposes. Neither of them, in itself, generates new knowledge and, due to the indiscriminate (as opposed to “scientific”) character of such activities, it is questionable whether they can be even considered to be conducted in compliance with scientific research methods. To all this it should be added that, in any event, the applicability of Article 3 is premised on the prior lawful access to the content to be mined and is subjected to the requirements of the three-step test. Both will be discussed in Part VI.
2. Possibility and limits of collaborations between beneficiaries and third parties
Article 3 DSMD allows beneficiaries of the exception to remain such when their research activities are undertaken in the context of partnerships with third parties, including commercial entities. Recital 11 does nevertheless clarify two things: first, that the beneficiaries can rely on their partners’ tools to carry out TDM, which implies that it is the beneficiaries – and not third parties – that still need to perform the TDM activities; second, that there is a limit to the possibility of such partnerships: when an undertaking has a decisive influence on a RO, then the protection under Article 3 shall be unavailable. Such a decisive influence could exist due to structural situations, such as through the commercial partner’s own qualification as a shareholder or member, which could result in preferential access to the research results. The circumstance that the Hamburg court in LAION did not consider it relevant that a commercial partner’s own employees held key positions within LAION is yet another reason why the reasoning and outcome of the judgment are problematic.
It follows from the foregoing that the possibility of public–private partnerships in the context of Article 3 is subject to a number of substantial requirements and constraints. In turn, amongst others, where the private partner undertook the TDM instead of the RO or CHI, the exception would be inapplicable. For example, Article 3 would be ruled out in a situation in which a partner used the dataset created by a RO for AI training purposes. That would be so, first of all, because the restricted acts thus performed would exceed what Article 3 specifically allows, and so would the purpose, which would no longer be TDM. Furthermore, it would be the partner – and no longer the RO – who undertook the training. In this regard, it is also worth noting that Article 3, while allowing the beneficiaries of the provision to retain the copies made for the purposes of scientific research only, does not allow the transfer thereof to third parties. Finally, the public interest rationale underpinning Article 3 as a whole would not extend to subsequent uses of the results of the TDM done for scientific research purposes.
In sum, even where an entity qualified as a RO or CHI, the exception would not extend beyond the making of reproductions of copyright content for scientific research purposes. That is to say that, for instance, any communication of the results of the TDM and/or the making available of datasets to third parties (including for training purposes) would be outside the scope of application of both Articles 3 and 4, given that it would exceed the scope of either exception.
IV. Object and scope of Article 5(3)(a) of the InfoSoc Directive (also in light of Article 5 DSMD)
Like other copyright directives,Footnote 47 Article 5(3)(a) of the InfoSoc Directive allows EU Member States to adopt exceptions “for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial purpose to be achieved.” On a plain reading of the provision, as well as in light of its rationale and relevant case law, its scope is such that limited activities are allowed.
1. Non-commercial research
The EU copyright acquis does neither define nor describe the concept of “non-commercial purpose.” So far, the CJEU has not received any direct questions seeking elucidation of this notion either. That said, both common interpretative standards employed by the CJEU – notably literal and teleological interpretation of relevant provisionsFootnote 48 – and existing case law on exclusive rights, in particular the right of communication/making available to the public under Article 3 of the InfoSoc Directive, allow one to flesh out the meaning and boundaries of such a concept.
Recital 42 in the preamble to the InfoSoc Directive links the notion of “purpose” to that of “activity.” In turn, this indicates that whether the potential beneficiary of an exception like the one in Article 5(3)(a) of the InfoSoc pursues a “non-commercial purpose” should be objectively evaluated. The organizational structure and the means of funding of the concerned person may nevertheless not be decisive factors to this end (see also recital 20 in the preamble to the DSMD). In principle, it might be possible for a person to benefit from a “non-commercial purpose” exception insofar as the specific use made of a protected work or other subject-matter – and therefore the activity at hand – is for a non-commercial purpose, even if the person otherwise pursues commercial objectives (for example, it is a private educational establishment).Footnote 49
Some further guidance regarding the understanding of “non-commercial purpose” may be drawn from recitals 69 and 40 in the preamble to the DSMD. Although the former serves to interpret the regime found in Article 17 therein, it indicates that a non-commercial purpose may be a non-profit purpose and that the entity of the revenues generated is not a decisive factor in establishing whether there is in fact a commercial purpose. In any event, a case-by-case assessment appears warranted. Turning to the latter, it suggests that activities aimed at covering one’s own costs would not remove the qualification of a certain activity as non-profit.
Having regard to case law on Article 3 of the InfoSoc Directive, the CJEU has considered – in addition to the constitutive requirements of an “act of communication” directed at a “public” – other non-autonomous, interdependent criteria in order to determine whether a certain communication would be relevant under the provision. As it is discussed in greater detail elsewhere, it might not be self-evident whether the presence of a profit-making intention should be assessed in relation to the specific act of communication at hand, or the broader context in which such an act is performed. Although both alternatives may be plausible, consideration of the context is preferable in light of CJEU case law.Footnote 50 In SGAE, Football Association Premier League and Others, and Reha Training, the Court concluded that the profit-making nature of the communication would be apparent from the fact that the defendants transmitted the relevant works in their own establishments (hotels, a public house, and a rehabilitation centre, respectively) in order to benefit therefrom and attract customers to whom the works transmitted are of interest.Footnote 51 In Stichting Brein, the CJEU found the profit-making intention of the defendant based on the circumstance that the relevant multimedia player “is supplied with a view to making a profit, the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders.”Footnote 52
In light of the foregoing, the notion of “non-commercial purpose” should be understood as follows. While the broader set-up and context in which a person operates are not decisive, what matters are the reasons – to be assessed objectively – as to why a certain restricted act is undertaken, i.e., whether the use in question furthers a commercial purpose.Footnote 53 In turn, if the TDM is carried out for research purposes that have no commercial character – whether directly or indirectly, in the present or potentially in the future – then the relevant national exception stemming from Article 5(3)(a) of the InfoSoc Directive could find application, provided that all other relevant conditions therein are satisfied. Vice versa, the exception shall be unavailable when the unlicensed TDM is carried out for research purposes that are even just indirectly or solely potentially commercial or when the results of the TDM undertaken are used for commercial reasons, including but not limited to commercial AI training.Footnote 54
2. Teaching and learning
The other limb of Article 5(3)(a) relates to “teaching.” An argument might be made that, since the result (or at least, the desired effect) of teaching is “learning” on the recipient’s side, unlicensed TDM and AI training could also be covered by teaching exceptions such as that of the InfoSoc Directive. It is likely along these lines that statements like the following have been made: “many workers in the knowledge economy read the news. They then sell their general knowledge, including what they learned reading the news, as part of their work. They owe no extra money to the newspaper beyond what they might have paid to access it. They might cite the paper, but this is not required by law.”Footnote 55
Such arguments are nevertheless flawed, not only because the process of “learning” is technically different between humans and machines (to “learn,” a machine will need to undertake acts of extraction and copying in the first place)Footnote 56 but also because, if acts of reproduction are being undertaken by either of them, this is a process that differs from mere “learning.” In any event, if a worker in the knowledge economy read the news and subsequently reproduced protected features of what they have read, they would be performing a new copyright-restricted act. In such cases, to be even able to claim the application of defences like quotation, criticism and review, or news reporting, the worker would be actually required by law to cite the source, in accordance with the express wording of both Article 5(3)(a) of the InfoSoc Directive and s30 CDPA.
Three additional points defeat the argument that education/teaching exceptions could cover the learning done in the context of TDM/AI training. First of all, such exceptions can be invoked only by those who use copyright works and other protected subject-matter for the purpose of imparting instruction (in accordance with the corresponding notion in Article 10(2) of the Berne ConventionFootnote 57 ). This means that the use of the protected content must be for illustration for teaching, not for other purposes.
Second, the exception is for the benefit of those imparting the education/instruction, not the human recipients of such teaching. The EU provision does not leave room for ambiguity in this sense. In turn, the insights that can be uncovered through TDM activities cannot be intended as teaching. Such a conclusion is confirmed if one considers, according to settled CJEU case law, the usual meaning in everyday language of the term “teaching.” This refers to giving someone (a person) knowledge, training someone (a person), or instructing,Footnote 58 which implies an active behaviour on the side of the person performing these activities. Admittedly, the provision contained in s32 CDPA does specifically refer to (human) learners too. While this is not the place to discuss the compatibility or not of the UK provision with EU law, it is worth noting that – in any event – s32 CDPA requires that the restricted act be “non-commercial” and done “for the sole purpose of illustration for instruction,” that is “solely to illustrate a point.”Footnote 59 In turn, (human) pupils might enjoy s32 CDPA protection insofar as the restricted acts they perform are exclusively in the context and for the purpose of the instruction received from their educators and teachers.
Third, as further confirmation that the exception under EU law is referred to those imparting the education/instruction and not the recipients thereof, while some teaching exceptions do not refer to any particular beneficiary, others – like Article 5 DSMD – do. Specifically, the latter exception refers to “educational establishments.” As is also clarified in recital 19, the key objective of Article 5 DSMD is to remedy uncertainties relating to the application of the then existing teaching exceptions (Articles 5(3)(a) of the InfoSoc Directive and 6(2)(b) of the Database Directive) in digital and cross-border situations. In turn, as discussed in greater detail elsewhere, Article 5 DSMD complements such exceptions by substantially turning them into mandatory exceptions for EU Member States to have, as well as clarifying that the beneficiaries of the teaching exception are educational establishments.Footnote 60 It follows that, under Article 5(3)(a) of the InfoSoc Directive as well, the exception is solely applicable in the context of teaching imparted in educational establishments.Footnote 61 If the beneficiaries were not the same across these various exceptions, then Article 5 DSMD would be a new and separate exception, not a provision aimed at clarifying the scope of the existing ones.
V. Fair use defences and TDM/AI training
Having considered jurisdictions with closed catalogues of exceptions, including purpose-specific TDM exceptions, it is also appropriate to determine if unlicensed AI training could be in principle deemed eligible for the application of open-ended fair use-style defences in countries which have them, including when such activities are seemingly undertaken under the aegis of research or learning. The answer, again, appears to be in the negative. Even without considering broader discussions regarding the compatibility of fair use with international obligations, including the three-step test,Footnote 62 the wording of relevant statutes and existing case law do suggest that unlicensed AI training would be unlikely to be covered by these models of exceptions.
To this it should be added that, as discussed in greater detail elsewhere,Footnote 63 the recently adopted EU AI Act imposes compliance with EU law for any model offered in that territory, irrespective of where TDM and AI training activities have been conducted. In turn, this indicates that AI developers seeking to place their models in the EU will need to ensure compliance with EU law and might be ineligible to invoke, for example, the US fair use doctrine even if the unlicensed training took place in that country. Therefore, at least from an EU perspective, claims along the lines that “[l]arge, effective foundation models […] will be developed around the world, in jurisdictions with very relaxed copyright laws”Footnote 64 are inaccurate insofar as they do not consider that, if there is no compliance with EU laws, such models could not be offered in the EU without the risk of liability.Footnote 65
1. US fair use
Crystalized in §107 of the 1976 US Copyright Act, US fair use traces its origins to the judgment of Justice Story in Folsom v Marsh. Footnote 66 As a doctrine that “has not stood still since 1976,”Footnote 67 it has undergone a substantial evolution over the past decades, also due to the growing relevance of transformativenessFootnote 68 to the assessment of the first fair use factor (purpose and character of the use). That said, the most recent US Supreme Court decision on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith Footnote 69 (“ Goldsmith” ), indicates that transformativeness is not all that the first use factor encompasses, nor does it render the other factors irrelevant, including the fourth (the effect of the use upon the potential market for or value of the copyrighted work). This has actually been consistently regarded as the most important fair use factor.Footnote 70 As to transformativeness, the Supreme Court held that:
the first fair use factor […] focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism. Although new expression, meaning, or message may be relevant to whether a copying use has a sufficiently distinct purpose or character, it is not, without more, dispositive of the first factor.Footnote 71
Referring back to Campbell v. Acuff-Rose Music,Footnote 72 the Goldsmith court noted that the central question under the first factor is whether the use supersedes the claimant’s work or rather adds something new, with a further purpose and character that must go beyond what is required to qualify as a derivative work: “The larger the difference, the more likely the first factor weighs in favor of fair use.”Footnote 73 In all of this, consideration of whether the use at issue is commercial and is justified “to promote the progress of science and the arts, without diminishing the incentive to create”Footnote 74 are also key. In turn, if the original work and secondary use share the same or highly similar purpose and the latter is commercial, this is likely to weigh against a finding of fair use.Footnote 75
Despite that fair use is said to be heavily dependent on the circumstance at hand (yet, one could wonder: what legal provision is not?!), the teachings of the judgment are also clear in other situations, including unlicensed TDM and AI training. While unlicensed TDM alone might qualify as or contribute to a finding of fair use in certain cases,Footnote 76 the same could hardly be true of (blanket) AI training, given that “training alone is rarely the ultimate purpose”Footnote 77 and in most instances it would: (a) involve prior, indiscriminate web scraping activities, also in disregard of websites’ own terms, with the result of rendering use of the content in question unlawful; be done (b) often for commercial reasons, (c) for purposes that compete with or are meant to create a substitute for the copyright work at hand; and (d) in a context in which a licensing market is developing or is already in place. So, as an example, the copying of a musician’s repertoire to train an AI model that could then produce outputs in the style of that musician,Footnote 78 or the taking of a publisher’s entire content to train an AI model that could produce books that compete with that publisher’s publications are examples of uses that are ineligible for any fair use finding. Holding otherwise would not only unduly extend the notion of transformativeness and inter alia disregard the fourth factor but would also run contrary to the incentive theory justifying the very existence of copyright under US lawFootnote 79 by reducing the number of human-authored works.Footnote 80
In light of the foregoing, it is therefore unsurprising that in the first case decided on unlicensed AI training, the conclusion of the US District Court for the District of Delaware was that the defendant’s conduct did not qualify as fair use. In Thomson Reuters v. Ross Intelligence Footnote 81 (“ Thomson Reuters” ), Circuit Judge Bibas granted summary judgment to the plaintiff, finding that the defendant’s training of a competing AI model to Thomson Reuters’ Westlaw infringed copyright in the latter’s headnotes. Regarding §107, the judge held that the first factor would weigh against a finding of fair use, given that the defendant’s use was commercial and not transformative. The judge recalled that transformativeness is about the purpose of the use: in that case, the purpose of the defendant was the same as Thomson Reuters’, hence non-transformative. Furthermore, the copying done by Ross Intelligence was not necessary for it to innovate, as it had been instead the case in cases like, e.g., Google v. Oracle.Footnote 82 As to the fourth fair use factor, Judge Bibas found that it also weighed against Ross Intelligence, given that its product was meant to be a market substitute for Westlaw. Importantly, “it does not matter whether Thomson Reuters has used the data to train its own legal search tools; the effect on a potential market for AI training data is enough.” At the time of writing, Ross Intelligence’s appeal is pending.
In the more recent order issued in Kadrey, et al. v. Meta Footnote 83 (“ Meta” ), Judge Chhabria granted summary judgment to Meta on the plaintiffs’ claim that the company had infringed copyright by training its models with their books on consideration that the plaintiffs had made the wrong argument and failed to develop a record in support of the right case. As a result, not only – “in the grand scheme of things”Footnote 84 – the consequences of the ruling are limited, but what is particularly relevant is the point, made by the judge, that “in most cases”Footnote 85 the unlicensed use of protected content for training purposes would be regarded as illegal, also considering that, if these models are expected to generate billions, even trillions, of dollars for their developers, it is “ridiculous” to claim that such companies cannot “figure out a way to compensate copyright holders” for the use of their content, if this is required for training purposes.Footnote 86 The judge also criticised the earlier order issued by Judge Alsup in Bartz, et al., v. Anthropic Footnote 87 (“ Anthropic” ), especially that he had appeared to overlook the substantial displacement effects of AI-generated content flooding the market and the reduction of incentives to create in the future.
2. Other fair use defences
Over time, a number of countries around the world have shifted from exhaustive catalogues of exceptions to open-ended fair use-style defences. Examples include Israel, Philippines, Sri Lanka, Taiwan, Singapore and South Korea. While a substantial body of case law, let alone AI-specific litigation, has not yet emerged in those jurisdictions, it is doubtful that unlicensed AI training could be regarded in most cases as non-infringing there either. The experiences of Singapore and South Korea might be helpful to note in this regard.
Starting with Singapore, this country’s Copyright Act 2021 includes – besides a specific TDM exception – an open-ended fair use defence (before the 2019 amendment: “fair dealing”) closely modelled upon, although not only mirroring the US doctrine.Footnote 88 Section 191 indicates that, in deciding whether a work or performance is fairly used, “all relevant matters must be considered,” including: “(a) the purpose and character of the use, including whether the use is of a commercial nature or is for non–profit educational purposes; (b) the nature of the work or performance; (c) the amount and substantiality of the portion used in relation to the whole work or performance; and (d) the effect of the use upon the potential market for, or value of, the work or performance.” Taking into account the first fair use factor (purpose and character of the use), in 2017 the Court of Appeal of Singapore noted that “the fact that the original and infringing works share the same purpose will tend to weigh against a finding of fair dealing.”Footnote 89 Similarly, having regard to the fourth factor (the effect of the use on the potential market for the value of the copyright work), this requires a court to consider “not only the extent of market harm caused by” the alleged infringer’s action, but also whether the defendant’s conduct, if “unrestricted and widespread,” would “result in a substantially adverse impact on the potential market” for the original, taking into account not only harm to the original but also harm to the market for derivative works.Footnote 90 More recently, in the context of the 2019 copyright reform, the Government of Singapore confirmed the authoritativeness of the guidance provided by the Court of Appeal as to how each of the fair use factors should be construed and applied by courts.Footnote 91
As stated, Singapore also envisages a specific TDM exception, premised on a “lawful access” requirement. In late 2024, the Ministry of Law and the Intellectual Property Office of Singapore confirmed that such a requirement would not be fulfilled if access to a copyright work was gained by circumventing technological measures which control access thereto.Footnote 92 Translating all of this to an unlicensed AI training context, it is difficult to imagine a different outcome from the one reached in, e.g., Thomson Reuters. Similarly, having regard to the TDM provision, lacking lawful access to the content in question, the defence would be inapplicable, in a similar way to what is prescribed under relevant European provisions (see below in Part VI).
Turning to South Korea, the Guide on Generative AI and Copyright prepared by the South Korean Ministry of Culture, Sports and Tourism is equally telling. In 2011, South Korea introduced a fair use provision (currently Article 35-5 of the South Korean Copyright Act, as last amended in 2023Footnote 93 ), also closely modelled upon the corresponding US doctrine, yet with some crucial differences from US law, including the express reference in the provision (paragraph 1) to the requirements of the three-step test.Footnote 94 Like the US provision, South Korean fair use lists four factors to determine whether the unlicensed use of a copyright work is to be considered fair. In the Guide, the example of web scraping for the purpose of creating datasets to be subsequently employed in AI training processes is specifically discussed, the conclusion being that such an activity might be infringing under copyright law if undertaken without a licence.Footnote 95 The Guide further highlights how the applicability of the national fair use doctrine to unlicensed AI training remains a matter of contention among commentators.Footnote 96 Because of this, it recommends “to prevent possible disputes by securing authorization from the rights holder prior to use.”Footnote 97
VI. AI training is not fully covered by any existing copyright exception or fair use defence
The preceding analysis has shown that, under EU and UK laws, unlicensed AI training is unlikely to fall in its entirety under the scope of application of any copyright exception: not only those specific for TDM, but also research and teaching. The same conclusion may be reached having regard to countries with open-ended defences modelled upon US fair use. Two further considerations support such a conclusion. The first is the circumstance that exceptions are only available in principle where the copyright work or protected subject-matter in question has been lawfully accessed. The second is the circumstance that all exceptions (including fair use-style provisions) need be framed within the requirements of the three-step test, as found under international,Footnote 98 regional and several national laws.
1. Lawful access
Articles 3 and 4 DSMD explicitly premise the availability of the respective TDM exceptions upon the lawful access to the copyright work or protected subject-matter in question. The same is prescribed under UK law by s29A CDPA and, outside of Europe, the TDM provision in Singapore copyright law amongst others.Footnote 99
The “lawful access” requirement must be intended to involve the lawful publication of the protected content to be used. Above all, “lawful access” (and “use”) is a general requirement under copyright law, regardless of whether a specific mention in this sense is provided in the statutes.Footnote 100 In the US, the Copyright Office has concluded that training of AI models on content that is known to be unlawful weighs against a finding of fair use.Footnote 101 In the recent Anthropic order, Judge Alsup also denied summary judgment for Anthropic that pirated library copies could be treated as training copies, finding that every fair use factor would point against Anthropic in such a scenario.Footnote 102 The same position has been indicated to apply under Japanese law too.Footnote 103 In Europe, the CJEU has consistently held that the availability of exceptions in general presupposes prior lawful access, further linking such a requirement to the three-step test.Footnote 104
In ACI Adam, the CJEU acknowledged that the exception in question (private copying under Article 5(2)(b) of the InfoSoc Directive) does not expressly address the lawful or unlawful nature of the source from which a reproduction of the work may be made. Yet, such a requirement is implied in all exceptions. Holding otherwise would unsettle the internal market building objective underpinning EU legislative action in the copyright field. It would also undermine the objective of proper support for the dissemination of culture by tolerating illegal forms of distribution of “counterfeited or pirated works.”Footnote 105 The same reasoning has been employed elsewhere, including other private copying referrals,Footnote 106 and cases concerning the interpretation of exceptions allowing the reporting of current events and quotation under Article 5(3)(c) and (d),Footnote 107 and the exemption under Article 5(1) of the InfoSoc Directive.Footnote 108
The CJEU has held that “a use should be considered lawful where it is authorised by the right holder or where it is not restricted by the applicable legislation.”Footnote 109 Put differently “a work, or a part of a work, has already been lawfully made available to the public if it has been made available to the public with the authorisation of the copyright holder or in accordance with a non-contractual licence or a statutory authorisation.”Footnote 110 In turn, all this indicates that there is lawful access to (and then “use” of) a copyright work or other protected subject-matter as a result of a prior authorisation provided by the concerned rightholder or by law. This is consistent with the characterisation of copyright’s exclusive rights as being preventive in nature. The CJEU has also expressly acknowledged the possibility for rightholders to restrict access to/use of content published online through contracts and not just technical means, both in circumstances in which the content in question is protectedFootnote 111 and those in which it is not.Footnote 112
In all of this, a clarification is warranted: it is true that certain exceptions, including those in Article 3 DSMD and s29A CDPA, cannot be overridden by contract. Nevertheless, they are all premised on a lawful access requirement too, thus implying that their availability is at least conditional upon the prior publication of the protected content at issue with the consent of the concerned rightholder or because of legal requirements. As a result, it would be erroneous to think that the reference that the DSMD makes to “content that is freely available online” (recital 14) means that the source of the content is irrelevant and that the exception in Article 3 could be invoked indiscriminately in relation to any protected content found on the internet.Footnote 113 An interpretation of this kind would also run contrary to the requirements of the three-step test, as discussed further below.
From the above it follows that exceptions should be understood as being premised on a lawful access requirement which, in turn, must be intended as entailing the use of protected content whose publication (and the modalities thereof) has been authorised by the concerned rightholder or by law. In respect of defences that prohibit contractual override, the availability thereof is also premised on the lawfulness of the source of the protected content to be used, which is to be determined having regard to the modalities, conditions and limits of the authorisation granted by the rightholder or by law when publishing the protected content in question.Footnote 114
2. Three-step test/fair dealing
All exceptions must be framed within the requirements of the three-step test and, having regard for example to those under UK law, fair dealing. As noted, the three-step test is found in international law, regional instruments (including Article 5(5) of the InfoSoc Directive, which implemented into the EU legal order the WIPO Internet Treaties and the three-step test found there,Footnote 115 and Article 7(2) DSMD) and several national statutes. Case law of the CJEU and national courts further confirm that the addressees of the three-step test are not only legislatures when drafting relevant legislation but also courts when applying resulting national provisions.Footnote 116
It is clear that the test consists of three cumulative requirements, which also need to be assessed in accordance with their logical order, that is as steps. Before determining whether a certain exception unreasonably prejudices the legitimate interests of the concerned rightholder, it is necessary to consider whether there is a conflict with a normal exploitation of protected content and, prior to that, whether the exception at hand only applies to certain special cases.Footnote 117
The certain special cases requirement means that “a limitation or exception in national legislation should be clearly defined and should be narrow in its scope and reach.”Footnote 118 This interpretation is also consistent with the case law of the Grand Chamber of the CJEU, including but not limited to the Opinion concerning the EU’s accession to the Marrakesh Treaty.Footnote 119 In sum: the meaning of “special cases” is that of specific, purpose-driven exceptions to copyright.Footnote 120 The second prong of the analysis is that the exception at hand does not conflict with the normal exploitation of a work. This requires consideration of whether this is such that “uses, that in principle are covered by that right but exempted under the exception or limitation, enter into economic competition with the ways that rightholders normally extract economic value from that right to the work (i.e., the copyright) and thereby deprive them of significant or tangible commercial gains.”Footnote 121 When an exception has the potential to reduce the volume of sales or of other lawful transactions relating to protected worksFootnote 122 up to the point that exempted uses enter into economic competition with non-exempted ones, then such a provision is incompatible with the second step of the three-step test.Footnote 123 It is also likely to fail the third prong of the three-step test analysis, in that it causes or has the potential to cause “an unreasonable loss of income to the copyright owner.”Footnote 124 As also noted by Japan’s Intellectual Property Office, “reproducing a copyrighted database work for the purpose of data analysis, such as AI training for which licenses for data analysis are available in the marketplace”Footnote 125 is an example of a situation where the national TDM exception would not find application due to the requirements of the three-step test.
Turning to “fair dealing,” this is a concept that is not defined in the CDPA and has been substantially developed through case law. Whether a certain dealing with a work is fair requires it to be assessed from the perspective of a “fair-minded and honest person.”Footnote 126 Fair dealing has traditionally been considered a matter of degree and impression.Footnote 127 When the United Kingdom transposed the InfoSoc Directive into its own copyright law, UK Government took the view that the resulting copyright exceptions would comply with Article 5(5).Footnote 128 The lack of a specific provision outlining the three-step test in the CDPA, together with the idea that the three-step test would be akin to the UK concept of fair dealing,Footnote 129 is the principal reason as to why “[th]ere has been very little judicial consideration”Footnote 130 of the three-step test in UK case law. Nevertheless, recent case law further supports that the notion of fair dealing mirrors the three-step test.Footnote 131
Aligned with considerations made in the context of EU provisions and open-ended fair use defences, under UK law the “most important”Footnote 132 fairness factor is the degree to which the alleged infringing use competes with the exploitation of the copyright work by its owner. Such a competition should be intended as extending beyond the actual form and medium in which the latter exploits their work and encompass any form of activity which potentially affects the value of the copyright work.Footnote 133 Transferring of all this to AI training, it is clear that, if the purpose of an AI model is to produce music, there will be a competition with the activity of record labels whose content may be used to this end. This, in turn, means that in no way could a purpose-specific exception allowing TDM at certain conditions – as it is the case under both EU and UK laws – be interpreted to extend to unlicensed AI training undertaken using millions of “input data” sourced from copyright works and other protected subject-matter to then establish a service that would directly compete with the content used at the input/training stage. Holding otherwise would also be contrary to the requirement, found in European and non-European experiences (including US law) that an unlicensed use does not unduly prejudice the existence or potential development of a licensing market.
VII. Conclusion
The analysis has shown that, while unlicensed TDM may – under certain conditions – be covered by an exception, the same conclusion may not be correct insofar as unlicensed AI training is concerned. That is not only because the latter engages the doing of restricted acts that exceed the scope of potentially available exceptions under EU and UK laws, but also because it runs contrary to key factors under the fair use analysis. Such a conclusion also appears correct from a broader perspective, that is the very justification for the existence of exceptions to copyright: to strike a fair balance that serves to accommodate protection of the latter with the rights and interests of third parties.Footnote 134
As AI technologies are likely here to stay, a “fair balance” of rights and interests requires that a licensing market – including directFootnote 135 and collective licencesFootnote 136 – not only does continue to exist but also develops further. As no AI training is fully covered by any existing exceptions, including those for “research” and “education,” the only way forward to ensure a fair and sustainable development of AI is one in which authors and rightholders are and remain in a position to control the use of their works and protected subject-matter.Footnote 137 An undue – if not altogether “ridiculous,” to borrow from Judge Chaabria himselfFootnote 138 – pride and prejudice that this would not be possible or even be merely “impractical”Footnote 139 would lead to many unfortunate events, probably of a worse kind than a young girl risking ruining her reputation having eloped with a Mr Wickman-type.Footnote 140 It is the law – and prior to that common sense – that requires such an approach to be adopted, and correctly so.
Acknowledgments
All internet sources were last accessed on 17 July 2025. The Author wishes to thank Lauri Rechardt, the anonymous reviewer, and the Editorial Team of the European Journal of Risk Regulation.
Competing interests
This study was prepared at the request of the International Federation of the Phonographic Industry (IFPI), but all views and opinions expressed – as well as any errors – are solely attributable to the author.
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