Here are responses to some of the copyright-related claims made by multinational AI developers who want to water down Australia’s copyright framework.
Claim: Australia’s copyright legislation is a ‘grey area’
Response: It is not. It sets out when someone needs permission (a licence) to use someone else’s content, including in connection with AI. It also sets out the requirements for copyright protection, including where a creator is using a technological tool. AI is not a technological development that requires or warrants changes to Australia’s copyright legislation.
Claim: Australia’s copyright system is a barrier to development of AI models
Response: There is a vast range of content available for lawful use by AI developers, including under efficient and fair licensing arrangements.
AI development in Australia will be on a smaller scale to that associated with the pioneer large language models. Australia’s copyright framework already has processes for enabling efficient and fair use of vast amounts of content, including its unique statutory licensing schemes for the education sector and government sector.
Claim: AI training is like reading a book
Response: This analogy (like similar analogies that have been made before by tech companies seeking to develop commercial products using other people’s content) is inapt and inaccurate. Training for Generative AI uses the expression of facts and ideas in other people’s content (e.g. the way that an author has written about a particular topic), which is protected by copyright.
Generative AI tools are designed to produce new content that expresses facts and information (e.g. in writing) in ways that mimic human-created content. The quality of the outputs (e.g. well-written text) is increased by the quality of the material that the models are ‘trained’ on. Language models are dependent upon well-written content (by human professional writers) to ‘learn’ how to write well.
Claim: Australia is out of step with international developments
Response: Australia’s copyright system is something to be proud of. It includes world-leading provisions, such as those enabling efficient and fairly compensated use of content in the education and government sectors. Its importance to Australia’s creative industries was recently reiterated in the National Cultural Policy.
In the US, large companies developed Generative AI models (such as large language models) by using other people’s content without their permission or payment to develop commercial products. They have argued that their actions were allowed in the US by the ‘fair use’ provision in US copyright law. There are now more than 30 court cases contesting this, which will take years to resolve. Some developers are now entering licensing deals with content companies.
Claim: Copyright isn’t the right model for creators’ interests
Response: Australia’s copyright framework enables legal use of other people’s content in connection with AI, including under licensing arrangements. Another mechanism is needed, however, to compensate Australian creators for the use of their content for AI development in other countries. Copyright Agency and others have asked the government to introduce a new law, separate to the Copyright Act, that would do this.
Claim: Licensing is not viable
Response: Licensing for AI is already happening. There have now been a series of deals between AI developers and content companies.
In July, US-based Copyright Clearance Center announced the launch of a collective licence for AI and UK-based Copyright Licensing Agency announced a text and data mining (TDM) collective licence.
Licensing of large volumes of content, including via not-for-profit copyright management organisations, has been a feature of Australia’s copyright landscape for more than 100 years. There are efficient large-volume licensing mechanisms in place for a large range of activities, such as media monitoring and music streaming.
Claim: Rightsholders would not get much money from a licensing regime
Response: Solutions for uses of masses of content have been in place for a very long time, including collective licensing by copyright management organisations. The market for licensing content for AI development is just starting to emerge. The value of third-party content to AI developers is clear. AI development will occur at many levels: not just the foundation models, but tools and applications built with smaller, curated datasets. Collective licensing means that the aggregate of payments from multiple sources can make a material difference to people working in the creative industries.
Claim: Licensing schemes will impede small developers
Response: AI developers expect to, and do, pay for all other inputs. They do not ask hardware manufacturers, software providers or data centres to subsidise their activities. It is supremely unfair that the creative industries be asked to subsidise AI development.
Licensing solutions are available to AI developers, big and small.
Some local AI development will receive government assistance, for example as direct funding or taxation arrangements. Australian governments should remind recipients of their obligations to only use legitimately sourced content, and provide information about how to ensure this (including via licensing).
The organisations making this claim are huge multinational companies. Their market power is not created by Australia’s copyright system. It needs to be addressed by measures in other areas, such as Australia’s competition regulation framework.
November 2024
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