Creators call for action on AI copyright exceptions

An exceptionally diverse coalition of creative workers including the National Writers Union (NWU) and other writers, illustrators, photographers, graphic artists, digital media workers, journalists, novelists, playwrights, composers, and songwriters today issued a joint call for action to redress the damage being done by copying of our creative work, without our permission and without compensation, to develop generative artificial intelligence (“AI”) systems.

As creators of copyrighted works – including text, illustrations, photographs, lyrics, music, audio, and video – our economic and moral rights have been gravely harmed by the copying and ingestion of our work, without permission or payment, to compile generative artificial intelligence (“AI”) language models – through the process disingenuously and anthropomorphically referred to by AI developers as “training” – that reuse our works forever after to “generate” derivative works as their output.

The creators’ coalition statement notes that much of this global AI development, even for commercial AI services being made available by US companies to users in the US and around the world, is being carried out in the European Union under cover of exceptions to copyright which were enacted by the EU in 2019. These exceptions were never intended to give a free pass to AI developers for copyright infringement. Interpreting these exceptions as creating a safe harbor in the EU for AI copyright infringement would violate the economic and moral rights of creators under international copyright treaties to which all EU member states and the US are parties.

As one of the organizations issuing the statement, the Graphic Artists Guild, notes, “The issue is critical because much of the development of AI generative technologies occurs in EU member countries. For example, the LAION-5b database of 5 billion images, used to develop a number of text-to-image models, is the product of the German Large-scale Artificial Intelligence Open Network non-profit.”

Another of the groups issuing the statement, the Science Fiction & Fantasy Writers Association (SFWA), points out that, “Responding to the unique issues that AI presents to creative copyrights is a global effort, not one limited to Silicon Valley. It’s important to ensure that writers’ rights are respected around the world, so corporations who may try to relocate their operations rather than compensate creators fairly will have no place to go.”

According to the creators’ coalition:

Much of the copying of our works for generative AI, including “scraping” of Web pages and compilation of “datasets” for use in generative AI, has been carried out from, and/or by entities in, the European Union, claiming to rely on the exceptions to copyright for “text and data mining” (TDM) in Articles 3 and 4 of the Directive on Copyright in the Digital Single Market (“DSM Directive”) enacted by the European Union in 2019.

But allowing these exceptions to be applied to copying for ingestion and reuse by generative AI systems constitutes a significant violation of the obligations of EU member states as parties to the Berne Convention….

We urge the European Union to promptly cure this violation of the Berne Convention and provide effective redress for the violations which have already occurred….

And we urge the United States government to use all available means to bring the European Union into compliance with the Berne Convention, in connection with the application of Articles 3 and 4 to generative AI….

Allowing AI developers to copy works to build software that generates unauthorized derivative works that compete with the original works has the potential to conflict with the normal exploitation of those original works. And those derivative works can, and already do, include works – fake news, fascist propaganda, phishing spam, defamation, etc. – prejudicial to the interests of the authors from whose original works they are derived….

By allowing the TDM exceptions in Articles 3 and 4 of the DSM Directive to be applied to copying for AI development, the EU has already won the race to the bottom to create the world’s most favorable jurisdiction of convenience for copyright-infringing AI, before the US or any other jurisdiction can consider the issue or adopt appropriate rules for AI development and before there is any chance for rightsholders to negotiate terms for permission, remuneration, attribution, and/or objection to prejudicial uses of our works for AI development. Unless action is taken to cure these violations of the Berne Convention in the EU, it will be mostly irrelevant what legislation might be enacted in the US to require fair compensation for AI development.

EU-based entities have already copied works included on perhaps billions of Web pages and in an unknown number of scanned books and other printed works for AI development.

AI companies have already derived billions of dollars in their valuations from this infringing copying. Without the works copied, “ingested”, and available to be regurgitated, generative AI would generate only worthless garbage. Much of the value of these companies is attributable to this infringing copying of human creators’ works.

We urge the EU and its member states to promptly amend the DSM Directive or promulgate regulations or guidance to clarify definitively that the exceptions in Articles 3 and 4 do not apply to copying for purposes of developing generative AI software. Still, no purely forward-looking change in the text or interpretation of Articles 3 and 4 will redress the violations of authors’ rights that have already occurred. Respect for authors’ rights will also require redress for the infringements to date.

We appeal for prompt and effective action to bring EU member states into compliance with the Berne Convention as it applies to copying of our works for AI development and use.

The joint statement from creators on AI copyright exceptions is co-signed by 24 organizations: the National Writers Union (NWU), American Society for Collective Rights Licensing (ASCRL), Artists Rights Society (ARS), American Photographic Artists (APA), Romance Writers of America (RWA), National Press Photographers Association (NPPA), American Society of Media Photographers (ASMP), Sisters in Crime (SinC), Horror Writers Association (HWA), Graphic Artists Guild (GAG), Authors Guild, Dramatists Guild of America, Society of Composers & Lyricists (SCL), Science Fiction & Fantasy Writers Association (SFWA), Novelists, Inc. (NINC), Songwriters Guild of America (SGA), Music Creators North America (MCNA), Garden Communicators International (GCI), Concept Art Association (CAA), Society of American Travel Writers (SATW), Textbook & Academic Authors Association (TAA), Alliance For Women Film Composers (AWFC), Composer Diversity Collective (CDC), and Game Audio Network Guild (G.A.N.G.).

The statement is being sent to both US and EU authorities.

The EU is currently in the late stages of considering an “AI Act”. This legislation could provide an opportunity to redress the damage done by overbroad interpretation of copyright exceptions for AI development. But the latest version of the AI Act entirely ignores copyright and authors’ rights.

The US is also vulnerable to criticism for violating the Berne Convention. US requirements for copyright registration constitute a “formality” prohibited by the Berne Convention, and the US has failed  to enact any legal protection for writers’ moral rights under that treaty. But the US government can, and should, lobby the EU to comply with international treaties at the same time that it corrects its own violations of those treaties.

This is only a first step in the ongoing work of the NWU and our allies in relation to generative AI.

Walking back the overbroad interpretation of EU copyright exceptions currently being exploited by AI developers won’t solve the problems of AI copyright infringement. It is, however, a necessary prerequisite to fair AI policies in the EU or anywhere else in the world, fair treatment of writers and other creators, and respect for our economic and moral rights to the work we have created and that AI companies are copying, ingesting, and regurgitating in the form of derivative works.

[Update: Parallel joint statement from European and international creators, July 18, 2023]