Model opt-out clause to be integrated into the CGU/CGV of your website: how to effectively prohibit AI training on your content.

In the European Union, the copyright exception for text and data mining allows the automated exploration of text and data for two distinct purposes:

1. For scientific research purposes (broad exception, with no possibility of opting out)
‍2. For commercial purposes (exception subject to compliance with two conditions: lawful access and compliance with the opt-out)

The two mandatory conditions for commercial use

When text and data mining is carried out for commercial purposes, European law imposes two cumulative conditions:

1. Lawful access to the contents concerned
2. The possibility for rights holders to oppose it via a “machine-readable” opt-out process

This second condition opens up a fundamental right for creators: that of refusing the use of their works for the training of commercial AI.

The decision of the Hamburg Court: validation of the opt-out in natural language

On September 27, 2024, the Hamburg Regional Court issued the first European decision concerning the text and data mining exceptions in the case between the photographer Robert Kneschke and the organization LAION.

The facts of the case

LAION, a non-profit organization, had integrated a protected photograph into its LAION-5B database used to train AI systems like Stable Diffusion. The site hosting the image, however, expressly prohibited use by “automated programs” in its conditions of use.

Legal education

The court found that an opt-out formulated in natural language in the Terms of Use is indeed machine readable. This decision confirms that you don't need to program your opt-out in Python : a clause written in French in your CGU/CGV is sufficient to be legally enforceable.

However, LAION was able to invoke the scientific research exception (which does not allow for an opt-out), which explains the rejection of the photographer's complaint.

Model opt-out clause

Here is an example of a typical opt-out clause valid for companies with subsidiaries or their head office in France:

PROHIBITION OF TEXT AND DATA MINING

The structure of this website as well as all of its components (texts, graphics, signs, graphics, signs, signals, sounds, images, etc.) are protected by intellectual property law and cannot be used without the prior written authorization of [YOUR NAME/COMPANY].

[YOUR NAME/COMPANY] hereby opposes any digital copies or reproductions of protected elements present on the website [VOTRE-SITE.COM], for the purpose of text and data mining, in particular by a generative artificial intelligence system, within the meaning of articles L. 122-5-3, III and L. 211-3, III and L. 211-3, 8° of the French Intellectual Property Code, transposing the EU Directive 2019/790 of April 17, 2019 on the copyright and related rights in the digital single market.

Consequently, any text and data mining operations by an artificial intelligence system on protected content, present on the [VOTRE-SITE.COM] website, whether they take place in France or elsewhere, constitute acts of counterfeiting subject to the sanctions provided for in articles L. 331-1 and following of the French Intellectual Property Code, unless prior written consent is obtained from [YOUR NAME/COMPANY].

To facilitate the reading of this right of opposition by a machine or any automated data collection device, this opposition is also expressed as follows:<TDM-RESERVATION: 1> or TDM: NO or <meta name="tdm-reservation" content="1">

Where to integrate your opt-out clause

Recommended strategic locations

1. In your General Terms of Use (CGU)
2. In your General Terms and Conditions of Sale (GTC)
3. In your legal notice
4. At the footer of your website
5. In the robots.txt file (technical supplement)

Recommended legal strategy

Priority actions to be put in place

Immediately:

✅ Integrate an opt-out clause in your existing CGU/CGV

✅ Add technical opt-out tags to your website

✅ Document your opposition To constitute evidence

In a second step:

✅ Monitor usage of your content through generative AIs

✅ Send formal notices in case of unauthorized use

✅ Adapt your strategy according to the evolution of case law

The importance of legal support

Writing an effective opt-out clause requires:

• One advanced legal expertise of AI and intellectual property law
• One Jurisprudential watch active on European developments
• One personalized adaptation to your sector of activity and your content

Conclusion: take action before it is too late

The Hamburg decision confirms the legal validity of natural language opt-out clauses, but also highlights the urgent need for action. The longer you delay in protecting your content, the more likely it is to be integrated into AI training bases.

The contractual opt-out is still your best protection against the commercial use of your creations by generative AIs. This protection must be put in place now, before your content is massively collected.

Do you want to legally secure your creations against AI? As a lawyer specializing in AI and intellectual property law, I draft tailor-made opt-out clauses and support you in your protection strategy. Contact me for a personalized consultation.

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