The US Copyright Alliance has welcomed two documents relating to AI that were published in Washington last week: President Donald Trump’s ‘National Policy Framework’ on AI and Senator Marsha Blackburn’s proposals for a set of laws that would regulate AI across the US.
That’s despite the two documents taking a very different approach to copyright matters. While Blackburn’s proposals would ramp up copyright protections in the context of AI, Trump’s framework says that copyright law should be left as it is, and any disputes relating to copyright and AI should be dealt with by the courts.
Despite that, Keith Kupferschmid, CEO of the Copyright Alliance - which includes various music industry organisations in its membership - found reasons to be cheerful about both documents.
Trump’s framework, says Kupferschmid, “reflects the long held views of the Copyright Alliance and many others in the creative community that AI fair use determinations should be left to the judiciary where the Supreme Court has ruled that ‘bright-line rules’ are inappropriate”.
When it comes to Blackburn’s proposals - which Kupferschmid describes as “thoughtful and comprehensive” - the Copyright Alliance, “especially applauds” the draft’s provisions that “directly address the use of copyrighted works for AI training”.
Those provisions would provide a ‘bright-line rule’ about whether AI training can be considered ‘fair use’ under US copyright law. Given what Kupferschmid said about such rules when commenting on Trump’s position, Blackburn’s ‘bright-line rule’ could presumably be employed in those scenarios where the Supreme Court has deemed it appropriate.
Trump has made it clear that he thinks any regulation of AI in the US should happen at a federal level, so that one set of rules applies across the whole country, rather than different states regulating AI platforms in different ways.
The President’s new ‘National Policy Framework’ on AI argues that “a patchwork of conflicting state laws would undermine American innovation and our ability to lead in the global AI race”, before proposing what AI laws Congress should now pass. Those cover things like “protecting children”, “safeguarding communities”, “preventing censorship” and “enabling innovation”, in addition to copyright.
Meanwhile, Blackburn’s proposed new laws - published as a ‘discussion draft’ to prompt debate - aim to meet Trump’s proposal for a single set of US-wide AI rules.
In what is possibly the most contrived bill name yet (in a country that loves contrived names for legislation), she has named her proposed act ‘The Republic Unifying Meritocratic Performance Advancing Machine intelligence by Eliminating Regulatory Interstate Chaos Across American Industry’ Act.
Which - if you strip out ‘intelligence’ from the equation - abbreviates as TRUMP AMERICA AI Act. You can almost guarantee a Grok-wielding intern got promoted for that particular piece of genius.
As far as copyright goes, Trump’s document confirms that the current White House “believes that training of AI models on copyrighted material does not violate copyright laws”.
That’s the opposite of the position held by the copyright industries, including the music industry, which believe that AI companies must get permission from rightsholders before using their works to train AI models, and that failure to do so is copyright infringement.
That all comes down to whether you consider AI training to be ‘fair use’ under US copyright law. If it is, no permission is required. Many tech companies argue that AI training is fair use, with dozens of lawsuits currently working their way through the US courts that centre on that dispute.
There have only been a small number of judgements so far, but those suggest there might not be a one-size-fits-all rule on this. Ultimately, whether or not AI training is fair use will likely depend on how an AI company sources its training content and what it then does with that content.
Trump’s document acknowledges this ongoing controversy and says the White House “supports allowing the courts to resolve this issue”. And, in the meantime, “Congress should not take any actions that would impact the judiciary’s resolution of whether training on copyrighted material constitutes fair use”.
Blackburn’s proposals - which were published before Trump’s framework - suggest that Congress should in fact take action which would impact on all the fair use disputes in the context of AI.
In a press release accompanying the draft TRUMP AMERICA AI Act, Blackburn says the proposed new laws “make clear that an AI model’s unauthorised reproduction, copying, or processing of copyrighted works for the purpose of training, fine-tuning, developing or creating AI does not constitute fair use under the Copyright Act”.
Despite the contrary positions of the two documents, it makes sense for the Copyright Alliance to support both Trump and Blackburn’s positions. Members of the Copyright Alliance - including members from the music industry - would obviously strongly prefer an amended Copyright Act that clearly says AI training is not fair use, as Blackburn proposes.
But with the knowledge that Trump and the people around him don’t support that view, it’s preferable for the issue to be left to the courts to resolve, rather than ending up with an amendment to the Copyright Act that would favour AI companies.
And while lots of legal uncertainties remain, created by the ‘mixed-bag’ judgements that have come out of the courts so far, that likely increases the impetus - already seen from some AI companies - to come to the negotiating table and secure licences from copyright owners.