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.

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[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.

ChatGPT: A peek into the future of practical AI regulation

Author: Emmanuel Salami (Doctoral Researcher)

Research group: Law, Technology and Design Thinking 

Emmanuel Salami

Artificial Intelligence (AI) systems have received much attention from key participants in the global economy because of the unprecedented change apparent from their adoption. From a legal perspective, there is no paucity of legislative, judicial, regulatory, academic, and stakeholder position(s) on the topic. Even though there is evidence of AI use in various sectors of the global economy, it might be too early to describe such adoption as mainstream. [1] However, it would appear that this is about to change with the launch of ChatGPT.

ChatGPT is a state-of-the-art natural language processing model developed by OpenAI. It is a variant of the GPT-3 (Generative Pertained Transformer 3) model, which has been trained on a massive amount of text data to generate human-like responses to a given input.[2] ChatGPT uses unsupervised machine-learning techniques to create responses. In other words, it can generate responses without the machine learning algorithm being trained to respond in any particular way.

This notwithstanding, human input is needed to curate the information and thereby guide its output. Furthermore, ChatGPT makes AI readily accessible to the public, thereby creating a potential avenue for unravelling, on a large scale, some critical legal concerns previously expressed about AI systems. Therefore, this blog post focuses on some Intellectual Property Rights (IP, IPR) and data protection law concerns that might arise in using ChatGPT.

ChatGPT might raise some exciting IP considerations concerning its output. This is because the datasets used to train the AI system at the machine learning phase must have been generated through the works of authors who are most probably unaware of it. Though ChatGPT is proving to be very good at mixing and matching, time will tell if we potentially have a copyright action on our hands, should it replicate works attributable to other authors.

A relatable concern has been raised by Australian artists who accused an AI system that creates art of infringing on their artwork. [3] Their rationale is that their artwork had been used to train the AI system, and its elements are evident in the AI-generated art. It is arguable that, at some point, something like this might be possible, especially when it comes to AI-generated literary works such as (non) fiction books.

One of the schools of thought justifying IPR posits that its purpose includes the incentivisation of authors and the encouragement of innovation. [4] ChatGPT’s (potential) use of copyrighted works without adequate consideration for the incentivisation of authors can potentially hinder the ‘author incentivisation’ objective of IPR. Furthermore, IPR accords all authors moral rights in their works, which is an inalienable right to be consistently recognised as the author of the work. [5] ChatGPT, and by extension, AI’s (potential) use of copyrighted works, threatens this IPR principle. In addition, OpenAI has created an avenue in its terms and conditions for infringed copyrighted works to be taken down from the platform. [6] However, this is neither a sufficient attempt to incentivise authors nor resolve the IPR concerns identified above.

Despite the output of ChatGPT essentially being non-personal and publicly available data, data protection law remains relevant in its use. However, it would appear that processing (potentially sensitive) personal data does not take the data retention principle into proper consideration. To avoid doubt, the data retention principle (also known as the storage limitation principle) simply requires that personal data should neither be retained nor capable of identifying natural persons longer than necessary in relation to the purpose(s) of processing. [7]

The retention of personal data in ChatGPT raises two concerns for the data retention principle: firstly, when users delete their account on the platform, all information about the account is deleted, and they will be unable to reopen another account. Users are therefore encouraged to deactivate their accounts, making their data available on the platform. [8] The implication is that users might be forced to keep their data on the platform to avoid being prevented from creating an account in future.

Of course, the platform may claim that the legal basis for retaining the account details upon deactivation (instead of deletion) is the user’s consent. However, such consent is invalid because it is non-voluntary. After all, the user has no other option. [9] It is frivolous to assert that such retention is justifiable by the performance of a contract since it is not necessary for such performance. [10] Secondly, some data categories entered into the ChatGPT system cannot be deleted. [11] Although users are advised not to enter sensitive data into the system, this does not resolve the data retention concern, especially because such erroneously entered data will likely be available for machine learning purposes.

The scenarios highlighted above also raise some interesting concerns from the perspective of the data minimisation and purpose limitation principles which cannot be fully addressed within the scope of this blog post. Flowing from the concerns identified above, one can say that the terms and conditions and the privacy policy of ChatGPT are quite superficial and non-transparent and do not sufficiently address these concerns. If ChatGPT is to become a mainstream application, these concerns (and more) must be addressed, particularly in the EU, due to its extensive (proposed) legislation regulating personal data and AI. The lack of transparency becomes even more worrisome, given how well ChatGPT has been received and the proposed intention of some global tech players to incorporate it into their products. [12]

From an epistemic perspective, ChatGPT (like most other AI systems today) only recreates information from other existing data and is incapable of creating new knowledge. This is because it lacks the human consciousness needed for knowledge creation. As Zittrain notes, AI systems (including Chat GPT) “don’t uncover causal mechanisms, they are at best statistical correlation engines”, unlike human intelligence, which is needed for the investigation of problems and their causal effects. [13] ChatGPT’s status as a “statistical correlation engine” is one reason behind some of the superficial and wrong answers it has been known to provide. In addition, it cannot discern and verify the validity/correctness of the information, although this may also result from training the system with error-prone data. This highlights the risks of importing real-world errors and biases into the realm of AI, resulting in the propagation of misinformation. Therefore, it is necessary to ensure that some form of human review is mandatory in using ChatGPT.

As identified above, ChatGPT has some hurdles to surpass if it is to be adopted without legal and regulatory challenges. It is necessary to carefully consider these issues so that AI adoption does not result in the erosion of user rights. While the frenzy surrounding AI is understandable, developers will do well to sustain this excitement by ensuring that their products comply with applicable laws.

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^[1]  See for instance - Next Rembrandt. <https://www.nextrembrandt.com/> accessed 06/01/2023.

^[2]  Shripad Kulkarni, Generative Pre-trained Transformer 3 by OpenAI. <https://link.medium.com/Rcb57QuWpwb> accessed 08/01/2023.

^[3] Cait Kelly, Australian artists accuse popular AI imaging app of stealing content, call for stricter copyright laws, (The Guardian.com, 11/12/2022). <https://www.theguardian.com/australia-news/2022/dec/12/australian-artists-accuse-popular-ai-imaging-app-of-stealing-content-call-for-stricter-copyright-laws?CMP=share_btn_link> accessed 08/01/2023.

^[4] Annette Kur and Thomas Dreier, European Intellectual Property Law: Text, Cases and Materials (Edward Elgar Publishing 2013) 5–10.

^[5] Art 6bis Berne convention.

^[6] OpenAI, Terms of Use, paragraph 3(d). <https://openai.com/terms/> accessed 9/01/2022.

^[7] Art 5(1) (e) GDPR.

^[8] Chat GPT FAQ, paragraph 7 <https://help.openai.com/en/articles/6783457-chatgpt-faq> accessed 9/01/2022.

^[9] Art 4(11) and Art 7 GDPR.

^[10] Art 6 (1) (b) GDPR.

^[11] Chat GPT FAQ, (n 8) paragraph 8.

^[12] Ryan Browne, Microsoft reportedly plans to invest $10 billion in creator of buzzy A.I. tool ChatGPT, (January 10, 2023, CNBC). <https://www.cnbc.com/2023/01/10/microsoft-to-invest-10-billion-in-chatgpt-creator-openai-report-says.html> accessed 11 January 2023.

^[13] Jonathan Zittrain, ‘The Hidden Costs of Automated Thinking’ (The New Yorker, 23 July 2019) <https://www.newyorker.com/tech/annals-of-technology/the-hidden-costs-of-automated-thinking> accessed 11 January 2023.