Germany: The Higher Regional Court of Hamburg strengthens the European model of technical exclusion in data exploitation

The Higher Regional Court of Hamburg confirmed, in a ruling dated 10 December 2025, that the sporadic download and automated analysis of a photograph protected by copyright to create a dataset for AI training does not infringe copyright, as it is covered by exceptions for text and data mining (TDM): both the general one (Sec. 44b UrhG) and the exception for scientific research (Sec. 60d UrhG). The Court specified that the exclusion by the copyright holder is not sufficient in natural language but must be 'machine-readable' to exclude the work from text and data extraction, and that the burden of proof of this readability at the time of use lies with the claimant.

Key points:

• Confirmation of the first instance: the Court dismissed the appeal and upheld the ruling of the Regional Court of Hamburg (27 September 2024, 310 O 227/23), which had previously validated the coverage of text and data extraction (TDM) in the creation of datasets.
• Machine-readable waiver: a plain text clause (e.g., in the Terms and Conditions or in the source code) was insufficient in 2021, so the Court required evidence that the system could automatically identify and process the reservation at the time of download.
• Dual coverage of TDM: the Court expressly applied the general exception of Article 44b of the Copyright Act (UrhG) (in addition to Article 60d for research), and included preparatory acts (e.g., downloading and verifying the correlation between images and text) within the scope of TDM.
• Scope of the case: focused on preparatory acts, not on training or results. The published dataset did not contain the images, but links and descriptions. The litigation centered on the temporary download to validate the dataset.
• Burden of proof, shared: the user generally must demonstrate that there was no reservation, and if the revocation exception is invoked, the rights holder must demonstrate the machine-readability of their reservation at the time of use.
• Three-step test (InfoSoc) passed: the internal creation of the dataset does not compete with the normal exploitation of the work, and the opt-out exception available for rights holders balances interests.
• Practical implications for Spain: Article 67 of RDL 24/2021 transposes the TDM exceptions (Articles 3 and 4 of the DSM) and allows rights holders to oppose through 'machine-readable' systems or by contract. Without this technical reservation, TDM could be legal.
• Next steps: the Court has admitted an appeal before the Federal Court of Germany. The debate could be linked to the review of the DSM Directive and to the transparency obligations of the Artificial Intelligence Regulation.

The ruling strengthens a model of 'technical exclusion' in the EU. If rights holders do not want their works to be exploited for AI, they must indicate this in a machine-readable format. For companies, the message is twofold: comply with exclusion signals and document due diligence. For rights holders, it is necessary to implement technical reservations and prove their temporal validity.

Link: 

• Ruling: 5-u-104-24.pdf

Article written by the TMT department of ECIJA Madrid.