The General Counsel of the US Copyright Office, Suzy Wilson, has said that the government body is considering possible licensing models that would allow copyright owners and creators to be compensated if their work is used to train a generative AI model. That suggests compulsory licensing is one option being considered, though Wilson admitted that the music industry in particular has raised concerns about that approach.
The Copyright Office's top lawyer was speaking at an intellectual property conference staged by the New York City Bar. "When we talk about compulsory licensing", she said, according to Law360, "we have already heard from the musicians and songwriters who have experience with the licensing model in other contexts, and they raise a number of questions about whether or not that would be appropriate".
Recordings and songs are already subject to some compulsory licences in the US, meaning that - in some circumstances - copyright owners and creators are obliged to allow their music to be used, with the payments they receive set by the Copyright Royalty Board. That includes the use of recordings by online and satellite radio services and the mechanical copying of songs. Songwriters in particular argue that the existence of a compulsory licence has resulted in their rights being consistently undervalued.
When it comes to the training of generative AI models, there is still a debate over whether or not AI companies even need to secure a licence from, or pay any money to, rights owners and creators. Many tech companies argue that AI training constitutes fair use under American copyright law, meaning they do not need to get permission when using existing content for training purposes.
One of the questions posed by the Copyright Office, when it launched its consultation on AI last year, was whether or not permission was required. But it also invited respondents to share their views on "what kind of remuneration system(s) might be feasible and effective", should it turn out AI training does indeed need to be licensed.
With the copyright obligations of the AI companies being tested in court, where a number of lawsuits have been filed by copyright owners, Wilson said that identifying workable and fair licensing models was one of the major issues that the Copyright Office is looking to address via its AI consultation. She added: "We are aware there is some licensing going on in the [AI] space and we've asked people to inform us about that".
It is true that some AI companies are using licensed content to train their models, and therefore the licensing arrangements they have negotiated with rights owners could create some sort of template for future deals.
However, some of those AI companies, while negotiating licensing deals, nevertheless maintain that AI training is still fair use, so may not be too keen to get involved in a process that sets some industry expectation that licences are required.
Although, if the outcome was a compulsory licence, then maybe they could live with that. Especially if the music community is right in saying that that approach usually results in licensees getting access to copyright works on the cheap.