GERMANY Trends and Developments Contributed by: Thomas Nägele, Steffen Henn, Anke Hofmann and Serpil Dilbaz, SZA Schilling, Zutt & Anschütz
ic research if they 1. pursue non-commercial purposes [...] The decision of the Regional Court of Hamburg The Regional Court of Hamburg dismissed the claim filed by the plaintiff. According to the court’s decision, the defendant was entitled to download the image to create AI training data - sets. The image-image description comparison carried out by the defendant constituted text and data mining within the meaning of Sections 44b Para. 1, 60d Para. 1 of the German Act on Copyright. However, due to the plaintiff’s res - ervation of use of the image within the mean - ing of Section 44b Para. 3 of the German Act on Copyright, the defendant was not allowed to reproduce the plaintiff’s image in accordance with Section 44b of the German Act on Copy - right. Nevertheless, the defendant was allowed to download the image in accordance with Sec - tion 60d of the German Act on Copyright, as this provision allows text and data mining for the purposes of scientific research by research organisations. The Regional Court of Hamburg was of the opinion that this was the case, as the defendant made the dataset available free of charge and not for commercial purposes.
In this context, the Regional Court of Hamburg had only pointed out that in the present case the download for the purpose of creating a training dataset was allowed by German Copyright Law in accordance with Section 60b of the German Act on Copyright and that it had not ruled on the question of whether the subsequent AI train - ing would be allowed by German Copyright Law pursuant to this provision. Since the subsequent AI training represents a further reproduction of the data in the meaning of German copyright law, this question must be examined separately and depends not least on whether and to what extent pre-existing data is recognisable. It there - fore remains highly controversial if Section 44b or Section 60b of the German Act on Copyright are applicable to AI training itself or if AI train - ing (although only conducted with the use of the legally created training dataset) remains prohib - ited.
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