The Federal Trade Commission last week held what it billed as a roundtable discussion on the creative economy and generative AI. Substantively, the discussion itself offered little that was terribly new; it was mostly a kind of Festivus for workers in the creative industries to air their grievances over how the companies that employ them increasingly are using generative AI to un-employ them: background actors and fashion models being forced to submit to full-body scanning to create more pliable digital replicas of themselves; advertisers and audio publishers using voice clones in place of voice actors; AI-generated music diluting the market for human-produced tracks. By now, all sadly familiar tales.
The fact the FTC convened the discussion at all, however, is of interest. Unlike the U.S. Copyright Office, or the Patent & Trademark Office, the FTC is not part of the IP policy-making machinery. It is a law enforcement agency, charged with policing unfair, deceptive and anti-competitive practices within industries and enforcing various consumer-protection laws. And, as we’ve alluded to here in previous posts (see here, here and here) copyright law — currently the primary battlefield over the training and use of generative AI models in the creative industries — may not be the only, or even the best, tool for framing an equitable marketplace in which both creative workers and AI developers can thrive. Other bodies of law, such as trademark, competition and publicity rights, as well as technical measures, could all have important roles to play.
Three of the FTC’s five commissioners spoke at the meeting, including chair Lina Kahn, signaling the agency takes its own possible role in ensuring an equitable AI ecosystem seriously. Commissioner Rebecca Slaughter was clear about just how seriously:
“Copyright is not and cannot be the only tool to address the deeply personal concerns creators hold about how their works are used,” she said at the top of the program. “There are powerful tools we can use on behalf of creators, workers and consumers.”
Chair Kahn has been a scourge of Big Tech since being appointed by President Joe Biden, bringing enforcement actions (not all successful) against Microsoft, Amazon, Meta, Nvidia and more. So her interest in scrutinizing AI is no surprise. Artificial intelligence has also emerged as topic No. 1 on Washington’s technology hit parade, and multiple regulatory agencies and congressional committees are jockeying for the inside lane.
But serious engagement by the FTC could introduce a potentially potent new element to the debate over generative AI, steering the discussion away from a strictly copyright-focused framing, with all the knotty questions around fair use and derivative works that come with it, toward a more straight-forward regulatory approach based on existing and well-established bodies of law. As Kahn noted in her opening remarks:
We’ve been very clear that we want to make sure the market understands that there is no AI exemption to the laws on the books. So, all of the laws that already prohibit unfair methods of competition, or collusion, or discrimination or deception — all those laws still entirely apply. I know that generative AI in particular poses a unique set of opportunities and challenges to creative industries. We’ve already heard significant concern about how these technologies could, virtually overnight, significantly disempower creators and artists who may watch their life’s work being appropriated into models over which they have no control…. It’s clear that for enforcers and regulators to be keeping pace and really understanding what’s happening on the ground is going to be absolutely essential.
That sounds like pretty serious engagement.