INTRODUCTION Contributed by: Dale Cendali, Joshua Simmons and Dana DeVlieger, Kirkland & Ellis LLP
Kirkland & Ellis LLP 601 Lexington Avenue
New York NY 10022 USA
Tel: +1 212 336 4800 Fax: +1 212 446 4900 Web: www.kirkland.com
In the wake of the landmark US Supreme Court decisions Warhol v Goldsmith and Jack Daniels v VIP Products, both decided in 2023, 2024 pro - vided courts and practitioners across the world with the opportunity to grapple with the practi - cal applications of these decisions. In addition, 2024 brought its own landmark copyright and trade mark rulings in the EU, including deci - sions defining the parameters of the referential trade mark use exception and articulating the standard governing the scope of protection for works of applied art. Perhaps the most intrigu - ing developments in copyright and trade mark law in 2024, however, came from the govern - ment reports, changes in law, clarifying judicial decisions, and revisions to practice standards dedicated to untangling the interaction between technological innovation and intellectual prop - erty, including the challenges and opportunities presented by generative AI and the metaverse. Interaction Between Innovation and IP Challenges and opportunities posed by generative AI The continued development of generative AI, which uses machine learning to generate con - tent, presents a number of challenges and oppor - tunities for copyright and trade mark law. On 1 August 2024, the EU’s AI Act came into effect. Implementation of the regulations contained in the Act began in February 2025. In the absence
of court decisions or statutes definitively ruling on the use of AI, other countries, like the US, are left to speculate about the effects of generative AI on derivative works and trade mark infringe - ment. Still other countries, like Japan, have com - missioned reports on the infringement risks and have drafted guidelines for the use of AI. While the practical effects of these statutes, writings, reports and guidelines are yet to be determined, it is worth taking a look at different approaches and concerns in the field of generative AI. The EU The EU AI Act took effect in August 2024, although the limitations and rules it contains did not begin to apply until 2025. The Act incorpo - rates the exceptions and limitations on the use of copyrighted works for the purposes of text and data mining (TDM) first articulated in EU Directive 2019/790. This Directive provided a mandatory exception “to the exclusive right of reproduction and to the right to prevent extrac - tion from a database” for universities, cultural heritage institutions, public-private partnerships with private sector research organisations, and other research organisations, when copyrighted works are used lawfully. Recital 105 of the EU AI Act allows copyright holders to “reserve their rights over their works or other subject mat - ter to prevent text and data mining” where the TDM is not done as part of scientific research.
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