Skip to main content
IP Copyright

The AI Act Makes Your Opt-Out Their Obligation. It Still Isn't Your Proof

In short

The EU AI Act tells model providers to go looking for your opt-out and to respect it once they find it. That obligation is real and it is theirs. What it can't do is answer the question a dispute puts to you: what did you make, and when.

The AI Act Makes Your Opt-Out Their Obligation. It Still Isn't Your Proof — Swiss Trust Layer

You publish work online and you put a reservation on it. Maybe that's a line in robots.txt, maybe a TDM Reservation Protocol file, maybe a sentence in your terms of use. Months later a model ships, and you have no way of knowing whether your material is inside it. The useful question is what the law actually does about that. Since 2 August 2025 the answer is more than many rightsholders expect in one direction, and less than they hope in another.

What Article 53(1)(c) puts on the model provider

Under Article 53(1)(c) of the EU AI Act, a provider of a general-purpose AI model has to put in place a policy to comply with Union copyright law. The provision names one thing specifically: identifying and complying with a reservation of rights expressed under Article 4(3) of the DSM Directive (EU) 2019/790. Obligations for GPAI providers have applied since 2 August 2025.

The verbs are worth reading slowly. Identify, then comply. The GPAI text data mining opt-out obligation sits with the provider, not with you. They're the ones who have to go looking for a reservation before they mine, and they're the ones who have to respect it once they find it. You don't have to notify them, chase them, or file anything with them for that duty to exist.

What a reservation has to look like to count

Article 4 of the DSM Directive is the commercial text and data mining exception. It allows mining of lawfully accessible works unless the rightsholder has reserved the right to prevent it. Article 4(3) is where that reservation lives, and it carries one condition that decides most arguments: for content made publicly available online, the reservation has to be expressed in a machine-readable way.

Machine-readable means a crawler can parse it without a person interpreting it. Robots.txt directives, the TDM Reservation Protocol, and rights metadata attached to the file itself all fit that description. A paragraph in your terms of use, written for a human to read, does not.

That distinction has already been tested. The Higher Regional Court of Hamburg, in its judgment of 10 December 2025 in case 5 U 104/24 (Kneschke v. LAION), held a reservation ineffective because it was expressed only in human-readable general terms of use rather than in a machine-readable format. A further appeal to the Bundesgerichtshof was expressly allowed, so the question is not closed. That judgment is covered on its own elsewhere on this blog. The short version here is that the format of a reservation carries as much weight as the fact you made one.

The duty runs against them, not for you

This is where the asymmetry starts to matter. Article 53(1)(c) is a compliance obligation placed on model providers, enforceable against them by the authorities set up to supervise them. Its existence is good news for rightsholders.

What it isn't is evidence of anything you own. A duty on someone else to look for your reservation tells nobody:

  • What you actually created, as opposed to what sits on the page today
  • The form the work was in at a given moment, before edits, later versions and re-uploads
  • The date it existed in that form
  • Whether any of that can be shown without relying on the platform that happens to host it

What a concrete dispute asks you

The moment a disagreement stops being abstract, the questions turn around. You stop asking whether a provider met a duty and start being asked to establish your own position. The questions put to you are the ordinary ones: what is the work, what form was it in, from what date, and how do you show that independently of your own systems.

Most publishers and dataset teams answer the last one with a CMS entry, a Git history, or a cloud storage timestamp. Those records are useful internally, but they sit inside infrastructure you control, so the date rests on the trustworthiness of that infrastructure rather than on something a third party can check on its own. A counterparty who wants to contest the date has an obvious line to take.

Two records, two different jobs

Question in disputeMachine-readable reservationDated record of the work
May a GPAI provider mine this content for commercial trainingThis is exactly what it addressesNot what it does
Does the provider have to go looking before miningYes, under Article 53(1)(c), applying since 2 August 2025Not applicable
What is the work and what form was it inNothing, a reservation is not the workThis is what the record fixes
On what date did it exist in that formOnly the date the reservation itself was publishedFixed by a qualified timestamp at sealing
Can a third party check it without your systemsDepends on what your site served that dayVerifiable independently of where the file is stored

What's worth putting in place now

  1. Express the reservation in a machine-readable form, not only in your terms of use. Robots.txt, the TDM Reservation Protocol, and embedded rights metadata are the formats currently in use.
  2. Separately, create a dated, tamper-evident record of each work at the point it is finished, before it goes anywhere public.
  3. If you want the regulatory background in one place first, our EU AI Act overview sets out how the obligations are sequenced.

Swiss Trust Layer covers the second item on that list: a qualified electronic seal and timestamp applied to a file, so the content and the date can be verified by anyone, without access to your CMS or your storage. It says nothing about whether a model provider met its own obligation, and that's the point.

The AI Act put a real obligation on model providers, and it is theirs to meet. What it did not do, and could not have done, is answer the question that gets asked of you: what did you make, and when.

Protect your work with Swiss Trust Layer AG

Seal your intellectual property with a court-proof e-Seal backed by Swisscom Trust Services.

Book a Free Demo

Related Articles

Accused of Using AI? What an Illustrator or Photographer Can Hand Over
IP & Copyright

No record proves a picture was made without AI. A sealed, dated, identity-linked record is what an illustrator or photographer can actually hand over.

October 10, 2026Read Article →
Defensive Disclosure: Dating What You Published So No One Else Can Patent It
IP & Copyright

Publishing a clear description of your idea can make it prior art. A timestamp on the exact file helps you show the date, but it does not make the disclosure sufficient or stop a filing.

October 9, 2026Read Article →
What Happens If You Lose Every Password: Recovery Tied to You, Not a Login
IP & Copyright

Any service can send a reset email. None of them help once you have lost that email too, along with the phone, the password manager and every backup code. ESCROW Storage is bound to your passport-verified identity, so getting your sealed files back does not depend on any credential you still hold: you can retrieve them in person.

September 30, 2026Read Article →
Cloud Storage Isn't Custody: What Identity-Verified Escrow in Switzerland Actually Changes
IP & Copyright

Dropbox, Google Drive, a shared company folder: all of them grant access to whoever holds the login, not to whoever is entitled to the file. Identity-verified escrow works differently. Recovery is tied to a KYC-verified person, held in Switzerland, independent of any cloud provider.

September 25, 2026Read Article →
Where the AI Copyright Cases Actually Stand, and What None of Them Decide for You
IP & Copyright

Four cases get lumped together as "the AI copyright cases." They are not one case, and none of them has ruled on whether training a model on your work without permission is infringement. Here is where Andersen, NYT v. OpenAI, Getty v. Stability, and Bartz v. Anthropic actually stand, and what creators can prove regardless of how or when any of them lands.

September 22, 2026Read Article →