Copyright Must Win

Author: Artha Dermawan (Indonesia-qualified Lawyer, Doctoral Student at the University of Lapland (Finland), funded by the Max Planck Institute for Innovation and Competition (Germany), and Visiting Researcher at the Australian Intellectual Property Institute, the University of Melbourne)[1]

Research Group: Law, Technology and Design Thinking

In the rapidly evolving landscape of technology and creativity, the advent of generative artificial intelligence (GenAI) has presented unprecedented challenges and opportunities to the domain of copyright law.[2] 

Artha Dermawan

At the heart of this technological revolution lies a critical question: does copyright, a centuries-old legal framework designed to protect the rights of creators, still hold its ground in encouraging and safeguarding creative works? This blog post argues affirmatively, positing that copyright is not only relevant but essential for the sustenance of human authors and the vibrancy of the economy, drawing lessons from the transformative impact of copyright in China's economic resurgence.[3] 

Copyright law was conceived as a delicate balance between the rights of creators to control and benefit from their creations and the public's interest in accessing knowledge and culture.[4]  This principle, rooted in the notion that incentivizing creativity through exclusive rights would lead to a richer cultural tapestry, has been the cornerstone of copyright since its inception.[5] 

However, the rise of GenAI, with its ability to produce original works reminiscent of human creativity, has stirred a debate on the relevance of copyright in the digital age. Critics argue that the ubiquity and efficiency of GenAI in generating outputs might render human creativity obsolete, undermining the economic rationale for copyright.[6] However, this perspective overlooks the intrinsic value of human authorship, which encompasses not only the creation of content but also the expression of human experience, emotions, and cultural nuances that GenAI cannot replicate. Copyright plays a pivotal role in ensuring that human authors are recognized and rewarded for their contributions, thereby motivating continued creative endeavors.[7]

The economic argument for copyright is further reinforced by the experience of China, where the introduction and enforcement of copyright laws have been instrumental in propelling the country's economy.[8] Prior to the adoption of robust copyright frameworks, piracy and the unauthorized use of intellectual property were rampant, stifling innovation and creativity. The enactment of copyright laws catalyzed a cultural and economic renaissance, fostering an environment where creativity could flourish, and innovators could reap the rewards of their labor. This transformation underscores the economic benefits of copyright in stimulating growth, encouraging investment in creative industries, and enhancing the country's competitive edge on the global stage.[9]

Moreover, copyright is not a zero-sum game that stifles innovation in the name of protectionism. On the contrary, it provides a structured framework within which innovation could thrive. The law allows for fair use, exceptions, and limitations that ensure the public's access to creative works while protecting creators' rights.[10] This equilibrium is crucial in the digital age, where the dissemination and remixing of content can serve as a catalyst for further creativity and innovation.

In the context of GenAI, copyright must evolve rather than be discarded. Legal frameworks need to adapt to the nuances of AI-generated outputs, distinguishing between outputs that are genuinely independent creations of GenAI and those that are derivative of human creativity. This differentiation is vital in ensuring that copyright continues to protect human authors without stifaring the potential of GenAI as a tool for augmenting human creativity.

In conclusion, the assertion that copyright must win in the era of GenAI is not a call for resistance against technological progress but a recognition of the enduring value of human creativity and its role in driving economic prosperity. As we navigate the complexities of the digital age, copyright remains a crucial mechanism for safeguarding human authors, ensuring that they are at the heart of the creative process, and sustaining the economic vitality of creative industries. Therefore, the preservation and adaptation of copyright laws are imperative for the continued flourishing of human creativity and economic development in the age of GenAI.

Copyright must win, and in the symphony of technological innovation, copyright remains our cultural compass, guiding the fusion of human creativity and economic prosperity.

__________________________

[1] This blog post is inspired by the policy framework proposed by the author in ‘AI v Copyright: How Could Public Interest Theory Shift the Discourse?’ published in volume 19(1) of the Journal of Intellectual Property Law & Practice in 2024 and ’Text and Data Mining Exceptions in the Development of Generative AI Models: What the EU Member States Could Learn From the Japanese “nonenjoyment” Purposes?’ Forthcoming in Journal of World Intellectual Property in 2024. The latter article was awarded second place in the 2022 Essay Competition organized by The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), sponsored by the International Federation of Intellectual Property Attorneys (FICPI). Unless specified otherwise, all internet references were last accessed on February 10, 2024.

[2] From the training data perspective, see, Artha Dermawan, ’Text and Data Mining Exceptions in the Development of Generative AI Models: What the EU Member States Could Learn From the Japanese “nonenjoyment” Purposes?’ (Journal of World Intellectual Property, 2024). On the egenral observations, see also, Annemarie Bridy, ‘Coding Creativity: Copyright and the Artificially Intelligent Author (5 Stanford Technology Law Review 1-28, 2012); Emmanuel Salami, ‘AI-generated Works and Copyright Law: Towards a Union of Strange Bedfellows’ (16(2) Journal of Intellectual Property Law & Practice 124-135, 2020); Artha Dermawan and Péter Mezei, ‘Artificial Intelligence and Consensus-Based Remuneration Regime in Southeast Asia’ (2023). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4625850; Mark Lemley and Bryan Casey, ‘Remedies for Robots’ (86 University of Chicago Law Review 1311-1396, 2019); Peter Yu, ‘The Algorithmic Divide and Equality in the Age of Artificial Intelligence’ (72 Florida Law Review 331-388, 2020); Vincenzo Iaia, ‘To Be, or Not to Be … Original Under Copyright Law, That Is (One of) the Main Questions Concerning AI-Produced Works’ (71(9), GRUR International, 793-812, 2022); Pamuela Samuelson, ‘Allocating Ownership Rights in Computer-Generated Works’ (47 University of Pittsburgh Law Review 1185-1188, 1986); Péter Mezei, ‘You AIn’t Seen Nothing yet' – Arguments against the Protectability of AI-generated Outputs by Copyright Law’ in Maurizio Borghi and Roger Brownsword (eds.), Informational Rights and Informational Wrongs: A Tapestry for Our Times (Routledge, Abingdon, 126-143, 2023).

[3] See, World Intellectual Property Organization (WIPO), ‘The Impact of Copyright on the National Economy Should not be Underestimated’ (2022). Available at: https://www.wipo.int/about-wipo/en/offices/china/news/2022/news_0027.html.

[4] Artha Dermawan, ‘AI v Copyright: How Could Public Interest Theory Shift the Discourse?’ (19(1) Journal of Intellectual Property Law and Practice, 2024) p. 56. The article underscores the necessity of defining clear objectives for copyright law, advocating for an evidence-based, consensus-driven, and morally grounded approach to balance creators' rights with public access to creative works.

[5] See, Christophe Geiger, ‘Freedom of Artistic Creativity and Copyright Law: A Compatible Combination?’ (8(3) UC Irvine Law Review, 2018).

[6] See, e.g., Anna Shtefan, ‘Creativity and Artificial Intelligence: A View from the Perspective of Copyright’ (Journal of Intellectual Property Law & Practice, 2021) pp. 720-728; Daniel J. Gervais, ‘The Human Cause’ in Ryan Abbott (ed.), Research Handbooks on Intellectual Property and Artificial Intelligence (Edward Elgar, 2022); Mark Lemley, ‘How Generative AI Turns Copyright Law on its Head’ (2023). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4517702.

[7] Artha Dermawan, n.4. See, Martin Senftleben, ‘Generative AI and Author Remuneration.’ (54 International Review of Intellectual Property and Competition Law, 2023). See, Nicola Lucchi, ‘ChatGPT: A Case Study on Copyright Challenges for Generative Artificial Intelligence Systems.’ (European Journal of Risk Regulation, 2023) pp. 17-21. See also, Christophe Geiger, To Pay or Not to Pay (for Training Generative AI), That is the Question, (JOTWELL, 2023) (reviewing Martin Senftleben, Generative AI and Author Remuneration, 54 International Review of Intellectual Property and Competition Law, 2023). Available at: https://ip.jotwell.com/to-pay-or-not-to-pay-for-training-generative-ai-that-is-the-question/.

[8] The relevance of copyright laws in boosting the Chinese economy is well-documented and multifaceted. According to the WIPO, innovation, creativity, and intellectual property, including copyright, are pivotal for economic recovery and sustainable development. The copyright industry significantly contributes to the GDP and employment, with China's copyright industry ranking among the top five globally. This industry not only plays a crucial role in China's innovation-driven development but has also positioned China from a follower to a leader in the global copyright arena. The development of industries with local characteristics, such as textiles and ceramics, showcases China's experience and contributions to global copyright governance, offering unique Chinese solutions to copyright challenges​. WIPO, ibid.

[9] Moreover, the theoretical rationales for IP protection emphasize the encouragement and reward for creative work. Copyrights and related rights cover literary and artistic works, granting legal protection to creators, thus fostering a culture of innovation and creativity. This protection is deemed crucial for stimulating inventive activities, with the protection of IP rights ensuring that creators can reap the benefits of their investments. In China, modern IPR regulation has evolved significantly since the 1980s, with improvements in legal frameworks and enforcement mechanisms aimed at fostering a conducive environment for the protection of intellectual property​. Muehlfeld Katrin and Wang Mei, ‘Intellectual Property Rights in China—A Literature Review on the Public's Perspective’ (7 Frontiers in Sociology, 2022). Available at: https://www.frontiersin.org/articles/10.3389/fsoc.2022.793165/full.

[10]  Artha Dermawan, n 4.