The tech company’s latest proposal about generative AI turns copyright law on its head, and could especially hurt smaller content creators, say experts
In its submission to the Australian government’s review of the regulatory framework around AI, Google said that copyright law should be altered to allow for generative AI systems to scrape the internet.
Unfortunately, copyright protection doesn’t extend that far. AI training is almost certainly fair use if it is copying at all. Styles and the like cannot be copyrighted, so even if an AI creates a work in the style of someone else, it is extremely unlikely that the output would be so similar as to be in violation of copyright. Though I do feel that it is unethical to intentionally try to reproduce someone’s style, especially if you’re doing it for commercial gain. But that is not illegal unless you try to say that you are that artist.
Copyright law on this varies, actually! In the UK, “fair dealing” actually has an exclusion for using copyrighted material for the purpose of commercially competing with the creator. This also includes derivative works. This does therefore cover style to a certain extent, because works imitating a style of an artist are generally intended to commercially compete with them. From that perspective, taking an artist’s entire portfolio, feeding it into an AI, and producing work in their style at a lower price than the artist does (because an AI produces something in seconds which takes the artist weeks), is pretty obviously an attempt to compete with the artist commercially.
While people like to draw comparisons between AIs and humans copying another artist’s style, the big difference here is that a human artist needs to spend hundreds of hours learning to imitate another artist’s style, at the expense of developing their own style, while the original artist is also continually developing their style. It is bloody hard to imitate another human’s art style. But an AI can do it in minutes, and I haven’t yet seen any valid arguments for how that’s not intended to commercially compete with human artists on a massive scale.
True, I wrote this from a US law perspective, where that kind of behavior is expressly protected. US law is also written specifically to protect things like search engines and aggregators to prevent services like Google from getting sued for their blurbs, but it’s likely also a defense for AI.
Regardless of if it should be illegal or not, I feel that AI training and use is currently legal under current US law. And as a US company, dragging OpenAI to UK courts and extracting payment from them would be difficult for all but the most monied artists.
For the moment, US companies do actually care what the UK courts and regulatory bodies say, because the trifecta of US-UK-EU is what tends to form a base of what the rest of the world decides. It’s why Microsoft have been so unhappy about the UK’s Competition and Markets Authority initially blocking the merger with Blizzard: even with the US and EU antitrust bodies agreeing to it, it did actually matter if the UK didn’t agree (I am so disappointed in the CMA finally capitulating). And some of the lawsuits against the AI companies are taking place in the UK courts, with no indications that the AI companies are refusing to engage. Obviously at this point it’s hard to say what the outcome will be, but the UK legal system does actually have enough clout globally that it won’t be a meaningless result.
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Unfortunately, copyright protection doesn’t extend that far. AI training is almost certainly fair use if it is copying at all. Styles and the like cannot be copyrighted, so even if an AI creates a work in the style of someone else, it is extremely unlikely that the output would be so similar as to be in violation of copyright. Though I do feel that it is unethical to intentionally try to reproduce someone’s style, especially if you’re doing it for commercial gain. But that is not illegal unless you try to say that you are that artist.
https://www.eff.org/deeplinks/2023/04/how-we-think-about-copyright-and-ai-art-0
Copyright law on this varies, actually! In the UK, “fair dealing” actually has an exclusion for using copyrighted material for the purpose of commercially competing with the creator. This also includes derivative works. This does therefore cover style to a certain extent, because works imitating a style of an artist are generally intended to commercially compete with them. From that perspective, taking an artist’s entire portfolio, feeding it into an AI, and producing work in their style at a lower price than the artist does (because an AI produces something in seconds which takes the artist weeks), is pretty obviously an attempt to compete with the artist commercially.
While people like to draw comparisons between AIs and humans copying another artist’s style, the big difference here is that a human artist needs to spend hundreds of hours learning to imitate another artist’s style, at the expense of developing their own style, while the original artist is also continually developing their style. It is bloody hard to imitate another human’s art style. But an AI can do it in minutes, and I haven’t yet seen any valid arguments for how that’s not intended to commercially compete with human artists on a massive scale.
True, I wrote this from a US law perspective, where that kind of behavior is expressly protected. US law is also written specifically to protect things like search engines and aggregators to prevent services like Google from getting sued for their blurbs, but it’s likely also a defense for AI.
Regardless of if it should be illegal or not, I feel that AI training and use is currently legal under current US law. And as a US company, dragging OpenAI to UK courts and extracting payment from them would be difficult for all but the most monied artists.
For the moment, US companies do actually care what the UK courts and regulatory bodies say, because the trifecta of US-UK-EU is what tends to form a base of what the rest of the world decides. It’s why Microsoft have been so unhappy about the UK’s Competition and Markets Authority initially blocking the merger with Blizzard: even with the US and EU antitrust bodies agreeing to it, it did actually matter if the UK didn’t agree (I am so disappointed in the CMA finally capitulating). And some of the lawsuits against the AI companies are taking place in the UK courts, with no indications that the AI companies are refusing to engage. Obviously at this point it’s hard to say what the outcome will be, but the UK legal system does actually have enough clout globally that it won’t be a meaningless result.