TLDR
An adviser to the EU's top court says a chatbot answer can infringe a press publisher's rights in two situations: when the chatbot got the article by getting around a block on bots, or when its answer is close enough to the article to replace it. The opinion in Like Company v Google is not binding, but it is the clearest legal test yet for a question Australian publishers are also negotiating.
KEY TAKEAWAYS
The case
Advocate General Maciej Szpunar delivered his opinion in case C-250/25, Like Company v Google Ireland, on 3 November. The case was referred to the Court of Justice of the European Union by a regional court near Budapest, and was heard on 10 March.[1]
Like Company runs ad-funded Hungarian news portals, including balatonkornyeke.hu. It says Google's Bard chatbot, and then Gemini, infringed its rights as a press publisher between June 2023 and May 2024.[2]
Two ways to infringe
Szpunar set out two situations in which a chatbot's answer can infringe. The first is access: the chatbot reached the article by getting around "a measure designed specifically to prevent access and/or scraping by internet bots". The second is substitution: the answer reproduces the article's form of expression so closely that it becomes "a direct substitute for the publication".[2]
Facts are not protected. Copyright covers a "specific form of expression", not "mere facts", the adviser said, so a chatbot that reports what happened in its own words is not automatically infringing.[3] He also doubted that Like Company's own example, a summary of a local news story, met his test.[2]
Training and opt-outs
On training, Szpunar said he "tend[s] to think" the EU's text and data mining exception can apply, provided the developer had lawful access and respected publishers' opt-outs, which can be machine-readable signals such as robots.txt or Google's Google-Extended token.[2]
Google seized on that part. "We acknowledge the Advocate General's opinion recognising that EU law permits AI training on publicly available information," a spokesperson said. Google says publishers can opt out of its AI features without affecting their search rankings.[3]
What it means here
The opinion is advice to the court, not a ruling, and no judgment date has been set.[2] It has no force in Australia. But the same opt-outs apply to Australian sites, and Australian publishers are having the same argument about what AI use of their work is worth: Google's AI licensing pilot pays some publishers less than 0.1% of their ad revenue, as Prompt the Market has reported. Szpunar's test moves that argument from whether AI may read the news to when an AI answer starts to replace it.
SOURCES & CITATIONS
James Dore is founder and editor of Prompt the Market and Strategy Director at Bushnote, a Sydney strategy, SEO and AI search agency. He has a background in strategy, media and financial services, and led consumer product marketing at MONEYME. He writes on AI search, answer engines, technology policy and media economics.
