This post addresses whether, in light of what’s noted thus far, copyright law requires AI model builders to license all such content, and thus whether a mandatory licensing scheme to enable fair exchange of value between creators of protected content and the AI model builders should be created.
My answer is a caveated “no” – for the moment, no copyright claim has persuaded a court that licensing is required to avoid infringing the rights of copyright holders in scanned/scraped works used to train AI models.[3] There remain arguments that use of content to train AI models is protected by fair use principles, which permit use of a protected work for study and to create transformative new works, and many AI model builders continue to defend these arguments.
Nonetheless, I believe a voluntary (or regulatorily encouraged) comprehensive licensing regime is both likely and preferable, for at least three reasons:
1) Distribution models already fail to allocate a reasonable and sustainable share of revenue for creative works to compensate artists who invented the works (including the concepts underlying the work) and undertook the risks, time, and other expense in bringing them into existence; AI could tip the balance here such that it works a material harm on the pace and profit of creative work;
2) Misinformation concerns already constitute a compelling interest that government regulation can and should address. The fight against misinformation enjoys substantial advantages where content can be properly attributed to its true creator, including creators who build off of licensed content to create their own works (e.g., parody entertainment). Thus, a licensing scheme furthers both public and private interests related to reducing misinformation (and disinformation);
3) It’s easier to contract than to sue, and it’s preferable to contract than to operate against uncertainty about material issues such as the lawfulness of model training. Many firms will prefer to reduce such uncertainty, and many more deals will be struck, and more innovations launched, in its absence. There are strong commercial incentives for firms to create efficient and industry-wide tools and processes that enable such risk reductions. Read more about Tool Without A Handle: Are You Not Trained? - Part 2
