Hollywood’s trade body has asked the US government to put pressure on any countries considering introducing new copyright exceptions that benefit AI companies - like, for example, the UK - to ensure that they include “effective and non-burdensome” opt-outs for rights owners.
It also wants Singapore, the country most frequently referenced for already providing a wide-ranging copyright exception for AI training, to provide more clarity on how its exception works and to also allow rightsholders to opt out. While Singapore provides AI companies with a copyright exception, there is a risk those companies will just base themselves there to avoid copyright obligations in other countries.
“With the rise and increasingly wide usage of generative AI technologies, certain markets, notably Japan and Singapore, have passed expansive text and data mining (TDM) exceptions in their copyright laws”, the Motion Picture Association writes in a submission to the US Trade Representative.
“These exceptions”, it adds, “allow use of online data (including from copyrighted works) to train AI datasets, including both commercial and non-commercial uses, in an overly broad manner”. However, it says, Japan has provided some “helpful clarity” that mitigates the negative impact of its TDM exception, to an extent. And Singapore should follow its lead.
The movie studios that make up the MPA’s membership, just like much of the music industry, argue that AI companies using existing copyright protected content to train generative AI models must first get permission from the relevant copyright owners. That would mean negotiating licensing deals with, and paying licensing fees to, movie studios and record labels.
Many AI companies argue they don’t need permission. This is either based on the idea that AI training is ‘fair use’ under American copyright law - a claim that is at the centre of numerous lawsuits working their way through the US courts - or that they can rely on TDM exceptions under certain copyright systems elsewhere in the world.
The last UK government proposed introducing a new TDM exception for the benefit of AI companies, but backtracked amid strong backlash from the copyright industries, including the music industry. It is thought the new UK government is now also considering such an exception.
However, this time it might be a TDM exception with an opt-out, similar to that already in place in the European Union. That would mean copyright owners could ‘reserve their rights’ from the exception, meaning AI companies would still need to secure bespoke permission to use their content.
In its submission to a USTR consultation on foreign trade barriers, the MPA notes the recent developments in the UK. It writes, “the newly elected Labour government has recently indicated that it will consult on legislative proposals addressing the use of copyrighted materials to train AI models”.
If the result of that consultation is that the UK introduces a new TDM exception then, the MPA goes on, “the exception must contain safeguards for rightsholders including lawful access, the ability to opt-out in an effective and non-burdensome manner, and clear copyright transparency provisions”.
Which means, as well as an opt out for rights owners, there should also be additional rules that say AI companies can only utilise content they can lawfully access and that they must be fully transparent about what content they have used during any training processes.
Singapore and Japan have often been cited as countries where, because of the TDM exceptions they introduced into their respective copyright systems, it is easier for AI companies to make use of existing content without getting permission and securing a licence.
This creates a global challenge for copyright owners, because AI companies could train their models in those two countries - where they do not need to get copyright owner permission - and then make their generative AI models available to users worldwide.
Which means if there are exceptions anywhere in the world, copyright protected movie or music content could be used by AI companies without getting permission.
Unless the movie and music industries can get additional ‘access to market’ rules added to copyright law - eg so that UK copyright law says AI models can only be made available in the UK if they were trained in compliance with the UK copyright system. The music industry is lobbying for such rules, but it adds an extra layer of complexity to the copyright and AI challenge.
This is why copyright owners would prefer the exceptions in Japan and Singapore to be restricted in some way. The MPA notes that, in Japan, the Agency Of Cultural Affairs did release official guidance in May this year which clarifies that the exception “does not apply in cases that would unreasonably prejudice the interests of rightsholders”, nor if content is accessed unlawfully.
The MPA welcomed this clarification, adding, “Singapore should similarly provide clarity around the scope of its provision and provide rightsholders the capacity to opt-out in an effective and non-burdensome manner”.