EXTRA The timing was mere coincidence, and the context different. But the official organs or the copyright industries were quick to pounce on what is at least a colorable connection between the Supreme Court’s 7-2 ruling in Andy Warhol Foundation v. Lynn Goldsmith and the current bubbling controversy around the use of copyrighted works to train generative AI models.
EXTRA As it did with data protection and privacy with its General Data Protection Regulation (GDPR), the European Union is again moving to establish a de facto global standard for the design and operation of generative artificial intelligence models and applications. Votes by two key committees of the European Parliament last week put the E.U.’s long-gestating AI Act on a glide path to adoption by the full legislature at a plenary session scheduled for mid-June. Once adopted, the proposed law would move to the final stage of the legislative process, involving three-way negotiations known as a trilogue among Parliament, the EU Commission and the EU Council.
EXTRA The U.S. Copyright Office held the second of its planned series of four listening sessions on generative AI last week, this time with a focus on visual arts. But if the officials were hoping to hear how Congress and the courts can or should respond to the challenges presented by the new technology they may have been disappointed.
While there was plenty of robust discussion over allegations of copyright infringement and whether images produced by or with AI tools should to eligible for copyright protection, one major theme to emerge from the three-hour event was the need to look beyond copyright law alone to address those questions.
EXTRA Universal Music Group chairman & CEO Lucian Grainge has had it up to here with generative AI.
“The recent explosive development in generative AI will, if left unchecked, both increase the flood of unwanted content hosted on platforms, and create rights issues with respect to existing copyright law, in the U.S. and other countries, as well as laws governing trademark, name and likeness, voice impersonation, and right of publicity,” he said on UMG’s otherwise upbeat Q1 earnings call this week.
The U.S. Copyright Office last week held the first of its planned series of “listening sessions” on artificial intelligence and copyright, which focused on AI and literary works. It featured representatives from authors’ groups and speakers from the technology and academic worlds talking past each other for three hours.
I highly recommend watching the replay when it’s posted on the Copyright Office website.
I say that not to be facetious. Rather, it’s because the communication breakdown on display was itself illustrative of where the policy debate around AI and copyright currently stands: We lack the critical, let alone shared vocabulary to fairly debate what we’re trying to debate.
The following op-ed is excerpted from a longer essay prepared by Association of American Publishers president and CEO Maria A. Pallante. The original can be found here.
By Maria A. Pallante
Following three years of litigation in the critical copyright case Hachette Book Group, et al, v. Internet Archive, we now have a strong and favorable result. In granting summary judgement for the publisher plaintiffs, Judge Koeltl resolved all four fair use factors in the Copyright Act against the Internet Archive (IA).
Everyone who values our global, creative economy should read the Court’s opinion. The holdings are a forceful validation of well-established law and an unequivocal rejection of the defendant’s upside-down assertions that its activities support “research, scholarship, and cultural participation by making books more widely available on the Internet.” As the Court observed, “Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.”
EXTRA Facebook-parent Meta last month suddenly began removing music by Italian songwriters from its various platforms, after failing to renew is licensing agreement with the Italian Society of Authors and Publishers (SIAE), the main collecting society for Italian writers and publishers. This month, the Italian Competition Authority (AGCM) launched an investigation into Meta’s handling of those negotiations. According to AGCM, Meta “could have unduly interrupted the negotiations for licensing the use, on its platforms, of musical rights thus abusing SIAE’s economic dependence.”
EXTRA The Ides of March this year fell in the middle of what turned out to be another busy week on the generative AI front. And, while perhaps not holding quite the same dire portent as for Caesar, the fallout from the events around that date could prove dramatic nonetheless. On Tuesday, OpenAI released its Generative Pre-trained Transformer version four (GPT-4) and an enhanced, GPT-4-powered edition of its ChatGPT bot. On Wednesday, the U.S. Copyright Office issued a new policy statement regarding the registration of works created in whole or in part by generative AI tools and announced plans to launch a formal inquiry into “a wide range” of issues arising from generative AI.
EXTRA: Oscar Wilde once famously quipped, “The only duty we owe to history is to rewrite it.” So it is somehow fitting that a historic Supreme Court case involving a photograph of Wilde would become a fulcrum point in the latest legal dustup over the proper historic reading of the Copyright Act. The historic case in question is Burrow-Giles Lithographic Co. v. Sarony, decided in 1884. It features prominently in the lawsuit filed by Dr. Stephen Thaler against the U.S. Copyright Office over the office’s refusal to register a piece of art Thaler claims was “created autonomously” by an AI engine of Thaler’s own design.
EXTRA From the days of player pianos if not earlier, new technologies have often discomfited creators and copyright owners, at least when the technology is first introduced. Radio was initially seen as a mortal threat to songwriters and music publishers fearful of its effect on sheet music sales. The VCR, in the immortal words of then-Motion Picture Assn. of America CEO Jack Valenti, was to the Hollywood studios “like the Boston Strangler to a woman home alone.” The MP3 compression format was the bane of the recorded music business.