AI Training: Plain language reservation of use not sufficient for OLG Hamburg

Second defeat for Berlin-based stock photographer Robert Kneschke: The photographer, whose images were tokenized for AI training, also lost against the Hamburg-based association Laion before the Higher Regional Court in Hamburg. In the first instance, the Hamburg Regional Court had already ruled that it considered the use of the photographer's image material to be covered by the so-called text and data mining exception. The judges of the Fifth Civil Senate of the Hanseatic Higher Regional Court largely agreed with the outcome of the previous instance.

Two aspects in particular played a role for the judges at the OLG Hamburg: whether Kneschke had formulated an effective reservation of use that complied with copyright law and prohibited text and data mining (TDM), thus effectively restricting the exception. Here, the judges concluded that for use for scientific purposes under §60d of the Copyright Act, there was no possibility of reservation, unlike for commercial use under §44b. And even then, according to the wording of the German legislator, it was crucial that a machine-readable reservation was deposited.

The user is responsible for proving that they comply with it, while the rights holder is responsible for depositing the reservation in a machine-readable format. However, in this case, the reservation was demonstrably only formulated "in natural language" in the source code and in the website's terms of use. Why both should not be accessible to AI model crawlers is a matter that not only the parties involved are likely to continue to discuss. The Hamburg judges, at any rate, believe – apparently also regarding the time of crawling in 2021 – "that a program can compare image descriptions and images does not automatically mean that it was possible to evaluate extensive terms of use".

Ruling will have further repercussions

That the photographer is also not entitled to any remuneration for the use of his works is "the result of the legislative decision to exempt uses falling under the exception from a remuneration obligation," the ruling states. This regulation is sometimes sharply criticized by copyright associations. And in Berlin and Brussels, where the relevant copyright rules are agreed upon at the EU level, the case has been closely monitored since the beginning. This is because the DSM Directive, which contains the "TDM exception," is being reviewed in this legislative period, and the EU Commission is expected to present a report on it by June 2026 at the latest.

With the ruling of the OLG Hamburg (Case No. 5 U 104/24), an appeal is expressly permitted due to the fundamental importance of the legal questions to be clarified. "The further development of the law requires a decision by the appellate court," the current ruling states. In the absence of highest court case law on the relationship between copyright and AI training, legal questions of importance beyond the present case would arise. Unlike in an appeal hearing, a revision does not involve a complete review of the facts but rather an examination of the legal correctness of the lower courts' decisions. The Federal Court of Justice would be responsible for the revision. Whether the Berlin-based stock photographer Robert Kneschke intends to take this step has so far been left open; the deadline for this expires at the beginning of January.

(kbe)