No. The EU AI Act's definition of "making available on the market" covers supplying a system for distribution or use in the course of a commercial activity whether in return for payment or free of charge. A free tier, a freemium AI feature, or a free public beta operated by a business is squarely in the course of a commercial activity. Free pricing doesn't move you out of scope, and it doesn't demote you from provider to something less.
So if your free tier includes an AI assistant under your brand, the Article 50(1) disclosure duty applies to it exactly as it does on your paid plans. Free users are, if anything, the audience regulators would expect disclosure for most: they've made no purchase decision and read no onboarding contract.
The same logic extends to the other duty areas. A free generative feature is still a generative system for the Article 50(2) marking duty if you're its provider. Free distribution of realistic AI images or video still triggers the Article 50(4) labelling duty when published.
What free tiers do affect is the penalty math's context, not the duties. Fines are discretionary, weighed against factors like the nature and gravity of an infringement, and for SMEs the ceiling is the lower of €15M or 3% of turnover (Article 99(6)), not the higher, as the standard rule has it. None of that is a reason to skip a disclosure that costs one sentence to add.
Edge case worth naming: a genuinely non-commercial hobby project with no business behind it sits differently. But the moment there's a company, a waitlist for a paid plan, or data collection feeding a commercial product, assume commercial activity and treat the duties as live.
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