Preserving heritage in the digital age: the right of reproduction and generative AI

This paper explores the evolving tension between copyright law – specifically through the lens of the right of reproduction – and the creation of future cultural heritage in the context of generative artificial intelligence (GenAI). While intellectual property rights have long incentivised human creativity and the production of cultural heritage, recent technological developments pose challenges to this paradigm. The European legal framework, notably the 2019 DSM Directive, has introduced preservation-oriented exceptions for cultural institutions. However, the rapid expansion of GenAI technologies introduces complex legal questions regarding the unauthorised use of copyrighted works in model training. By focusing on the right of reproduction as conceptualised in European Union law and interpreted by the Court of Justice of the European Union (CJEU), this paper analyses how acts of reproduction within the AI training pipeline may infringe existing rights. Drawing on key cases such as Infopaq and Premier League, the paper argues that the current, technically focused interpretation of reproduction may inadequately address the nuanced harms posed by GenAI. It proposes a reconceptualisation of the reproduction right, one that considers not only technical copying but also contextual economic factors, particularly the impact on the ‘core market’ for human creators. Indeed, without adequate mechanisms to secure fair compensation, authors may lose the incentive to create, thereby jeopardising the development of future cultural heritage. Ultimately, the paper contends that this reinterpretation is crucial for establishing a legal framework that balances technological innovation with the safeguarding of future creative heritage in the digital era.