Jan 11, 2024 2 min read

US Congress told to clarify AI training is not fair use and the market can sort out everything else

Another session on AI took place in US Congress yesterday, this time looking at the impact of AI on journalism - unsurprisingly the publishers taking part were adamant that training an AI model with existing content does not constitute fair use under American copyright law

US Congress told to clarify AI training is not fair use and the market can sort out everything else

If US Congress could just clarify that training a generative AI model with existing copyright protected works is not fair use, then the free market can deal with any other challenges posed by AI in the context of the media and entertainment industries. That was the message of Roger Lynch, CEO of magazine publisher Conde Nast, at a Congressional hearing yesterday. 

“We believe that a legislative fix can be simple”, Lynch told a session on AI and journalism staged by the US Senate’s Subcommittee On Privacy, Technology And The Law. Lawmakers, he went on, should clarify “that the use of copyrighted content in conjunction with commercial Gen Al is not fair use and requires a licence”.

The copyright industries, including the music industry, are adamant that any AI firm that trains a model with existing content must get permission from relevant copyright owners. But many tech companies argue no such permission is required because AI training is covered by exceptions in at least some copyright systems - or, under US law, constitutes fair use. 

Not so, Lynch insisted. Fair use, he said, is “designed to allow criticism, parody, scholarship, research and news reporting” and is not “intended simply to enrich technology companies that prefer not to pay”. And crucially “the law is clear that it is not fair use when there is an adverse effect on the market for the copyrighted material”.

“Big tech companies claim that getting permission for the use of copyrighted content isn't practical, but it is”, he added.  “There are a great many situations where multitudes of rights owners license multitudes of users in efficient ways. In music publishing, ASCAP, BMI, SESAC, GMR and others fulfil this role”. 

Also referencing other rights organisations, and content aggregators like the Shutterstock and Getty image libraries, he concluded: “I am confident that the free market can generate efficient licensing solutions once the Gen Al companies acknowledge the need to licence”. 

It remains to be seen if there is any appetite in Congress to clarify fair use in this way. Although, according to Law360, committee member Josh Hawley did raise concerns about the “expansive view of fair use” coming from the AI companies. He added: “If their reading of fair use prevails, fair use is going to be the exception that swallows the rule. It's the mouse that ate the elephant. We're not going to have any copyright law left”.

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