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Author: Admin | 2025-04-28
Chose infringement as a faster and more efficient route to commercially produce a successful smartphone platform.137 The SCOTUS found this use non-infringing. If SCOTUS’s Google/Oracle ratio decidendi is followed in the pending GenAI cases, TDM might as well be seen as a transformative fair use.138 Judge Leval’s ‘prescient’ suggestion ‘to make transformative use the predominant factor’ merits attention.139 Sag goes a step further in the analysis and suggests that, in light of the idea/expression dichotomy, if ‘the original expression is not transmitted to a new audience’, then gathering of training data ‘is just as much as non-expressive use as were the uses in the reverse engineering cases, [such as] iParadigms, HathiTrust and Google Books’.140 Thus, in the opinion of the authors such as Carroll, Sag and Samuelson, GenAI’s TDM may in certain situations be deemed transformative.141Like the USA, Canada, Singapore and Japan too have taken a relatively liberal route to TDM. Notably, Japan, with its civil law tradition, may be closer to the EU’s droit d’auteur approach. Hence, a Japanese model may also be relatively easier to implement in the EU. The TDM exception in Japan is much broader than the EU’s TDM exception.142 In the Japanese approach, a distinction is drawn between the use of works for enjoyment and the use of works for non-enjoyment purposes.143 This distinction is then used as a basis to develop a more broadly worded exception for TDM.144 Considering the close parallels between the Japanese copyright law (which in turn is largely inspired from the German Urheberrechtsgesetz, the German copyright law) and EU’s droit d’auteur tradition, Japan’s broadly worded and ‘dedicated TDM limitation for any purpose’ has been identified as a potential proposal to broaden the currently restrictive TDM exception in the EU.145 4. What framework for TDM in the EU?The above section elaborates on the distinction between the EU, the Japanese and the US approach to TDM. It may, in fact, be no exaggeration to suggest that the divergence between the two sides of the Atlantic is as wide as the Atlantic itself. In light of the potential of the TDM to offer
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