The Conflict Between Press Publishers’ Rights and the TDM Exceptions: Is Art. 15 an Obstacle to Data Mining?

Harkai, István (2026) The Conflict Between Press Publishers’ Rights and the TDM Exceptions: Is Art. 15 an Obstacle to Data Mining? JOURNAL OF INTELLECTUAL PROPERTY INFORMATION TECHNOLOGY AND ELECTRONIC COMMERCE LAW. ISSN 2190-3387 (In Press)

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Abstract

The 2019 CDSM Directive introduced Article 15, establishing a landmark related rights framework designed to safeguard the financial and organizational investments of press publishers within the European Union. While primarily aimed at recalibrating the digital news ecosystem against exploitative aggregation by online platforms, a profound dogmatic tension has emerged regarding the statutory text and data mining (TDM) exception under Article 4. Digital intermediaries increasingly invoke this exception to shield the commercial pre-training of generative artificial intelligence models, potentially neutralizing the economic substance of press protection. This paper argues that such attempts are fundamentally flawed through a rigorous analysis divided into frontend and backend exploitation vectors. Utilizing the systemic criteria of the three-step test under WTO and European Union jurisprudence, this study demonstrates that commercial generative ingestion conflicts with the normal exploitation of press products and causes unreasonable economic prejudice. Furthermore, it addresses the critical intersection of cross-border data processing and digital market foreclosure – central battlegrounds highlighted during the recent Grand Chamber hearing of the CJEU in the Hungarian Like Company v. Google reference (Case C-250/25). Finally, this paper evaluates how the copyright compliance mandates under Article 53(1)(c) of the EU AI Act serve as a procedural catalyst, shifting the burden of proof and dismantling platforms’ territorial defenses. Ultimately, this study establishes that because Article 4 CDSM remains confined to the reproduction right and strictly conditioned upon machine-readable opt-outs, the independent right of making available to the public remains an unassailable barrier against unauthorized algorithmic exploitation.

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