What does 2026 augur for AI and IP in Europe?

The interplay between intellectual property (IP) and artificial intelligence (AI) dominated the agenda in 2025. The English High Court gave its decision in Getty Images v Stability AI, where Getty's copyright infringement claim was dismissed, but a different outcome was reached in Germany in GEMA v OpenAI, where GEMA was successful in establishing primary copyright infringement. 

However, Getty was recently granted permission to appeal to the Court of Appeal and this is expected to be heard during the course of 2026. OpenAI has also stated its intention to appeal in Germany. 

The UK government's response on its AI and copyright consultation is anticipated in spring 2026 and the Supreme Court's judgment on the application of the computer program patenting exclusion to artificial neural networks is expected in early 2026.

There are also several anticipated developments in the EU with a consultation on text and data mining (TDM) rights reservation and a referral to the Court of Justice of the EU (CJEU) on the application of copyright rules to generative AI.

UK – copyright

At the end of 2024, the UK government released its long-awaited consultation on copyright and AI. The consultation principally proposed a new TDM exception for all purposes where works are lawfully accessed, but allowing rightsholders to reserve their rights, and underpinned by increased transparency measures. This proposal is similar to the EU's approach, but the government seeks to address the practical difficulties with rights reservation raised in the EU through standardisation.

Although this approach is typically seen as more developer-friendly, the government also considered strengthening the copyright framework where AI models are trained in other jurisdictions. This is a topic that is likely to receive more attention since the Getty Images v Stability AI judgment. In that case, Getty dropped its primary copyright infringement claims – that its copyright protected works, or a substantial part of them, were reproduced in the UK – partly because it could not establish that any training of Stability AI took place in the UK.

However, its claim for secondary copyright infringement – essentially that the training of Stability AI outside the UK would have infringed copyright if it had taken place in the UK and therefore it was an "infringing copy", the subsequent importation of which into the UK would be an act of infringement – was also dismissed.

Although Getty has been granted permission to appeal on the issue of secondary copyright infringement, those advocating for greater protection for the creative industry could claim that the failure of the secondary copyright infringement claims in Getty highlights that UK copyright law needs to be strengthen to make it clear that AI models trained using copyright protected works in other jurisdictions cannot be commercialised in the UK without appropriate authorisations from the copyright holders.

As part of a government concession on copyright during the enactment of the Data (Use and Access) Act 2025 (DUA Act), it issued a statement in December 2025 on its progress in relation to copyright and AI. The statement provided some analysis of the over 11,500 responses it received to its consultation, noting that there was strong support from the creative industries for the introduction of transparency measures relating to AI training to support the licensing of copyright works. The tech sector was said to have "mixed views on transparency, with many supporting non-legislative approaches, or light-touch regulation".

This statement follows various voluntary working groups the government has held, seeking to find a voluntary consensus approach to the issues (which previous governments have tried and failed to do). 

The government has stated that it continues to consider "all options". The government is committed in the DUA Act to publish an economic impact assessment before 18 March 2026. The government had indicated that it would respond to the consultation by this date as well, although the secretary of state for Science, Innovation and Technology, Liz Kendall, has described the government as having a "reset moment" and has indicated that the response in March may not offer a "definitive" solution to the issues.

It will be interesting to see whether the appeal in Getty Images v Stability AI will be heard and decided upon prior to the government's consultation response. The Court of Appeal will only be able to decide the Getty appeal on the basis of the law as it is at the moment, whereas the government consultation response could address future potential policy changes.

EU – copyright

In the EU, OpenAI has stated its intention to appeal the outcome of the Munich I Regional Court's decision in GEMA v OpenAI, where the court found that large language models could memorise copyright-protected texts and that this fixation within the model constituted reproduction under copyright law.

The European Commission has launched a consultation and call for expressions of interest to support implementation of the EU AI Act's obligation for providers of general-purpose AI (GPAI) models to identify and comply with rightsholders' reservation of rights from TDM. Article 4(3) of the DSM Directive provides an "opt-out" right allowing rightsholders to reserve their rights and exclude their works from TDM processing.

The Commission has launched this process to gather evidence on the use of existing and available rights reservation solutions (identified in an EUIPO study) and to invite stakeholders to express their interest in participating in follow-up workshops to discuss opt-out protocols. The consultation and call for expressions of interest deadline was extended to 23 January 2026, so further work from the Commission on this is likely to take place throughout 2026.

Moreover, the CJEU has been asked to rule for the first time on how copyright rules would apply to generative AI technology in C-250/25 Like Company v Google. The questions referred to the CJEU relate to the interpretation of Articles 2 and 3(2) of the InfoSoc Directive on the rights of reproduction and communication to the public and Articles 4 and 15(1) of the DSM Directive on the TDM exception and press publishers' rights. Quite how quickly this case will progress is not yet known.  

UK – AI and patentability

The Supreme Court is expected to hand down its decision in Emotional Perception in early 2026. It will consider whether an AI invention involving an artificial neural network is a computer program "as such" and therefore not patentable.

The High Court had taken a permissive approach to the patentability of AI inventions, finding that the AI invention was not a computer program "as such" and was patentable. This was, however, overturned by the Court of Appeal, which put AI-implemented inventions on the same footing as any other computer- implemented invention. Clear guidance from the Supreme Court on the patentability of AI inventions will be much welcomed by industry.

Osborne Clarke comment

This year is likely to be significant for the interface of AI and copyright in both the UK and the EU. In the UK, while the Getty judgment was seen as a big win for Stability AI and for generative AI developers generally, it turned on an issue of statutory interpretation not considered by the English courts before and it is possible that the Court of Appeal might reach a different decision.

Nonetheless, the appeal will still not address the important question of primary copyright and database right infringement due to Getty's evidential issues. The UK government's consultation did touch on the issue of jurisdiction and it is likely that this will take greater prominence in the government's response to the consultation because of how the issues played out in Getty.

There will be a greater focus on the practicalities of TDM rights reservation in the EU. This could also inform the UK government's approach, given its preferred policy option in the copyright consultation was to introduce a similar rights reservation approach.

With AI playing an ever-greater role in everyday life and the continued uncertainty around the IP position, will this year bring greater clarity?