Reliance on Copyright Limitations and Exceptions  
Even if a book is in copyright, it’s possible that copying books for AI training may be covered 
by existing limitations and exceptions to copyright law in particular jurisdictions. For 
example: 
• In the United States, many argue using existing works to train generative AI is “fair 
use,” consistent with existing law and legal precedents.  This is the subject of a 19
number of currently active court cases, and different actors and tools may yield 
different results, as fair use is applied case-by-case using a ﬂexible balancing test.  
• In the European Union, there are explicit exceptions in the law for “text and data 
mining” uses of in-copyright works, both for non-commercial research and for 
commercial purposes. However, for commercial uses and for users outside of 
research and heritage institutions, they must respect the rights of rightsholders who 
choose to “reserve their rights” (i.e., opt-out of allowing text and data mining) via 
machine readable mechanisms.  The exception also requires that users have “lawful 20
access” to the works. 
• Finally, Japan provides a speci ﬁc text and data mining exception, without any 
comparable opt-out requirement for commercial uses as is embedded in EU law.  21
 
While exceptions that allow AI training exist in several other countries, such as Singapore and 
Israel, most countries do not provide exceptions that appear to permit AI training. Even where 
potentially available, as in the United States, legal uncertainty and risk create a hurdle for 
anyone building a books commons.  22
 See e.g. Comments from Sprigman, Samuelson, Sag to Copyright Oﬃce, October 2023, at https://19
www.regulations.gov/comment/COLC-2023-0006-10299 as well as many other submissions to the US 
copyright oﬃce; see also Advocacy, Katherine Klosek, Director of Information Policy and Federal 
Relations, Association of Research Libraries (ARL), and Marjory S. Blumenthal, Senior Policy Fellow, 
American Library Association (ALA) Oﬃce of Public Policy and. “Training Generative AI Models on 
Copyrighted Works Is Fair Use.” Association of Research Libraries, 23 Jan. 2024, www.arl.org/blog/
training-generative-ai-models-on-copyrighted-works-is-fair-use/.
 See Articles 3 and 4 of the EU’s Directive on Copyright and Related Rights in the Digital Single Market 20
— https://eur-lex.europa.eu/eli/dir/2019/790/oj.
 Japan clariﬁed its laws in 2018 to make clear that this type of use is permitted — see discussion in 21
Testimony of Matthew Sag, July 2023, https://www.judiciary.senate.gov/imo/media/doc/
2023-07-12_pm_-_testimony_-_sag.pdf, see also Fiil-Flynn, S. et al. (2022) Legal reform to enhance global 
text and Data Mining Research, Science. Available at: https://www.science.org/doi/10.1126/
science.add6124 (Accessed: 28 Sept. 2023). 
 See supra note 22. See also Jonathan Band, Copyright Implications of the Relationship between 22
Generative Artiﬁcial Intelligence and Text and Data Mining | Infojustice. infojustice.org/archives/45509. In 
addition, for an in-depth look at the cross-border legal challenges involved see: Wrapping up Our NEH-
Funded Project to Help Text and Data Mining Researchers Navigate Cross-Border Legal and Ethical 
Issues. 2 Oct. 2023, buildinglltdm.org/2023/10/02/wrapping-up-our-neh-funded-project-to-help-text-and-
data-mining-researchers-navigate-cross-border-legal-and-ethical-issues/. Accessed 20 Mar. 2024.
Towards a Books Data Commons for AI Training 10