Lokesh Vyas and Yogesh Badwal
This post was originally published on Spicy IP.
Bonjour,
Lately, we’ve been cogitating on this curious concept called the “opt-out”, which has been cropping up with increasing frequency in generative AI litigation, including in India. The EU and the UK are taking the idea seriously and considering giving it statutory teeth. On the surface, it is sold as a middle path, a small price to pay for “balance” in the system. However, at least prima facie, it seems like a legal absurdity that fractures its modern foundational logic, where authors receive default copyright without any conditions.
The opt-out model, the argument goes, reintroduces formality through the back door, a de facto formality of sorts. This shifts the burden onto authors and rights holders to actively monitor or manage their works to avoid unintended inclusion in the AI training. There have been questions about whether such an opt-out scheme is compatible with the Berne Convention, which prohibits the same under Article 5(2), e.g., here, here, and here.
Given the complex nature of this issue and the fact that many such discussions happen behind paywalls, making them inaccessible to the public, we thought it would be beneficial to share our ideas on this topic and invite further reflection. This two-part post mainly focuses on the legality of opting out without addressing its implementability and applicability, which raises several questions (e.g., as discussed recently in Martin Sentfleben’s post). In short, we probe whether opt-outs violate the Berne Convention—the first international copyright law treaty binding on all members of the TRIPS and WCT.
We answer it through two questions and discuss each one separately. First, is opt-out a prohibited formality for the “enjoyment and exercise” of authors’ rights under Article 5(2) of the Berne Convention? Two, can it be permitted as an exception under the three-step test under Article 9(2)? We answer the first question in the negative and the second in the positive. Additionally, we also examine whether Berne already has a provision that can allow this without looking at the details. This post addresses the first question.
What Makes Opts Outs So Amusing – The Flip?
Many generative AI models are trained on vast datasets, which can also include copyrighted works scraped from the internet without the explicit consent of content creators, raising legal, ethical, and normative concerns. To address this, some AI developers have created and claimed “opt-out mechanisms,” allowing copyright holders or creators to ask that their works not be used in training (e.g., OpenAI’s Policy FAQs).
Herein lies the catch: it requires authors and copyright holders to explicitly say “No” to training by adding a robots.txt tag to their website with specific directives that disallow web crawlers from accessing their content. (E.g., see this OpenFuture’s guide here) Thus, instead of creators being protected by default, they are supposed to opt out to prevent exploitation. One could say that this flips the logic of copyright on its head–from a presumption of protection to a presumption of permission. But that’s not so simple.
Notably, opting out is not a novel argument. In fact, it can be dated back at least to the 1960s in the Nordic countries’ model of “Extended Collective Licensing” (ECL), which mandates collective licensing while preserving the author’s right to opt out. Other notable academic literature on opt-out can be found here, here, here, and here, dating back over two decades. Swaraj also covered this issue a decade ago. In particular, we must acknowledge the scholarship of Jane Ginsburg, Martin Sentfleben, and Stef van Gompel, who have significantly influenced our thinking on the topic.
Two Key Questions: Opt out as a Formality and opt out under a permitted Exception
Formality Argument first.
Here, the argument goes that the opt-out is a prohibited formality under Article 5(2) and should not be allowed. However, we doubt it. Let’s parse the provision first. Which states:
“(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.” (Authors’ emphasis)
For context, the provision pertains to “Rights Guaranteed outside the Country of Origin” for both national and foreign authors. And the question of no-formality pertains particularly to foreign authors. In other words, by removing formality requirements in the country where protection is claimed, the provision enabled authors to automatically receive protection without needing to satisfy foreign formalities. This matters because while countries can impose conditions on their own nationals, it’s generally assumed that they will not treat their own authors worse than foreign ones. The post follows this presumption: if a country cannot burden foreign authors, it’s unlikely to impose stricter terms on its own people.
Although the removal of formalities had been discussed in the international copyright law context as early as the 1858 Brussels Conference, an important event in the development of international copyright law, it was not implemented until 1908. This change addressed practical difficulties, including identifying the “country of origin” when a work was published in multiple countries, and the challenges courts faced in enforcing rights without formalities. (See International Bureau’s Monthly Magazine, January 1910) Tellingly, while a country can make formalities for its people, it cannot do so for foreign authors. It’s generally assumed that a country would not obligate its authors more than it does to foreign authors.
Textual Tensions of Article 5(2)
While the phrase “any formality” in the first line of the provision might suggest that all kinds of formalities—including de facto ones like opt-out mechanisms—are prohibited, that is arguably not the case. We say this because the provision is divided into two parts, and the prohibition on formalities applies only to the first part, which is germane to enjoying and exercising rights. The second part of the provision, beginning with “Consequently”, gives leeway to the states wherein they can make formalities regarding the ‘extent of protection’ and ‘means of redress’ provided to authors under copyright law.
Importantly, there are four key terms around which the whole interpretative game resolves: 1.) enjoyment of rights, 2.) the exercise of rights, 3.) extent of protection. and 4.) means of redress. While all the terms have different meanings, the no-formality rule is applied to the first two categories. But now, the hitch hits home: none of these terms finds definition in the Berne Convention.
The negotiating history and the scholarship come in handy here. Pertinently, a formality related to enjoyment generally refers to conditions imposed on the existence of a work (e.g., a requirement to deposit or register it). A formality related to exercising rights means the condition for implementing the rights, such as making registration mandatory to exercise the right.
Understanding the next two terms is tricky. While “means of redress,” as Ginsburg suggests, means the kind of remedies provided by the convention, what matters more for this post is the meaning of “extent of protection”, which is not defined in the convention. Fret not, the negotiating history and scholarship can aid our understanding.
Relevance can be drawn from Gompel’s solid work, who—drawing on a 1909 Dutch commentary—observes (at page 174) that “[t]he Berne Convention affords contracting states full leeway to regulate the extent of protection (i.e. to establish the manner in which authors can exercise their authority), it also grants them freedom to subject the extent of protection to certain internal conditions”. (Footnotes omitted).
What this translates into, for the present issue of a statutory opt-out arrangement, is that such a mechanism, if adopted, would merely shape how authors exercise their authority over their works. It would, however, not extinguish their enjoyment or exercise of rights altogether.
A similar reading of the “extent of protection” also surfaces in the negotiation history of the Berne Convention, particularly through two interesting interventions by Germany, which clarify the provision’s scope. One was in 1883, the other in 1908. These remarks are necessary because, while they were not imported into the language of the convention, they were largely agreed upon in substance by the member nations. (see the negotiations documents linked at the end of this post)
For a bit of context, while the current Article 5(2) uses the phrase “any formality,” the original 1886 version referred to “conditions and formality” in the then Article 2(2). However, Germany disagreed with the term “conditions and formality”. Instead, it had proposed different wording for this provision, (in French) “conditions formelles et matérielles,” which, as per these English OUP translations, translates to “conditions of form and substance.” In this context, Dr. Meyer from Germany said the following:
‘[t]he words “formalities and conditions” cover all that has to be observed for the author’s rights in relation to his work to come into being (“Voraussetzungen” in German), whereas the effects and consequences of protection (“Wirkungen” in German), notably with respect to the extent of protection, have to remain subject to the principle of treatment on the same footing as nationals.’ (See Negotiating History, 1884 meeting, English translation.) (Authors’ emphasis)
On this remark, the Conference agreed with Dr. Meyer on the scope of the words ‘formalities and conditions’. Fast forward to 1908, Germany once again stepped in with a clarifying remark, emphasising that the prohibition on formalities under the provision extended only to external conditions (“formalités et conditions extrinsèques”), and not to internal conditions of protection (“conditions internes”). It was in the context of clarifying that not all conditions are prohibited that Germany remarked:
“[I]t is important to make it clear that the provision does not refer to the internal conditions on which the various rights of the author depend, for example, the condition of non-publication of a work in order for the exclusive right to recite it in public to be recognized; these internal conditions are part of the protection itself and are determined, for example, according to the legislation of the country where protection is sought. It is only from the extrinsic conditions exi- gained by the legislation of a country of the Union that the author protected by the Convention must be exempted, that is to say, from certain specific obligations that the author is obliged to fulfil in order to secure protection for his work, such as the express prohibition of reproduction and the reservation of rights, the mention of the author’s name, as well as other indications of this kind to be placed at the head of the work, etc” (See the French text of the 1908 Revision Conference)
While there were questions and concerns regarding the German terminology from Italy, France, and Monaco, which proposed different terminologies, there was no disagreement on the substance of the German comment. We recommend reading Gompel’s analysis (at pages 164-172), which further supports this interpretation with primary and secondary sources. Notably, although without explicitly using the terms “internal” and “external” conditions, the Berne International Bureau made an effort to clarify the meaning of “formalities” in a January 1910 article published in Le Droit d’Auteur, which was the official journal of the Berne Union. In doing so, it endorsed the German position.
Conclusion
In sum, the opt-out does not constitute a prohibited formality under Article 5(2) because it regulates only how authors exercise their rights (i.e., the ‘extent of protection’), not whether they have those rights in the first place. However, the analysis does not end here. An argument remains that opt-outs may be permissible as exceptions under the three-step test in Article 9(2). We will explore this further in the next part of this post, which can be found here.
See you in the next post.
A big thanks to Swaraj Barooah for helping us refine the post!
