Sidestepping the debate about whether AI art is actually fair use, I do find the fair use doctrine an interesting lens to look at the wider issue — in particular, how deciding whether something is fair use is more complex than comparing a case to a straightforward checklist, but a fairly dynamic spectrum.
It’s possible that something could be:
Highly transformative
Takes from a published work that is primarily of a factual nature (such as a biography)
Distributed to a different market than the original work
but still not be considered fair use, if it had used the entirety of the base work without modification (in this case, the “highly transformative” would pertain to how the chunks of the base work are presented)
I’m no lawyer, but I find the theory behind fair use pretty interesting. In practice, it leaves a lot to be desired (the way that YouTube’s contentID infringes on what would almost certainly be fair use, because Google wants to avoid being taken to court by rights holders, so preempts the problem by being overly harsh to potential infringement). However, my broad point is that whether a court decides something is fair use relies on a holistic assessment that considers all four of pillars of fair use, including how strongly each apply.
AI trained off of artist’s works is different to making collage of art because of the scale of the scraping — a huge amount of copyrighted work has been used, and entire works of art were used, even if the processing of them were considered to be transformative (let’s say for the sake of argument that we are saying that training an AI is highly transformative). The pillar that AI runs up against the most though is “the effect of the use upon the potential market”. AI has already had a huge impact on the market for artistic works, and it is having a hugely negative impact on people’s ability to make a living through their art (or other creative endeavours, like writing). What’s more, the companies who are pushing AI are making inordinate amounts of revenue, which makes the whole thing feel especially egregious.
We can draw on the ideas of fair use to understand why so many people feel that AI training is “stealing” art whilst being okay with collage. In particular, it’s useful to ask what the point of fair use is? Why have a fair use exemption to copyright at all? The reason is because one of the purposes of copyright is meant to be to encourage people to make more creative works — if you’re unable to make any money from your efforts because you’re competing with people selling your own work faster than you can, then you’re pretty strongly disincentivised to make anything at all. Fair use is a pragmatic exemption carved out because of the recognition that if copyright is overly restrictive, then it will end up making it disproportionately hard to make new stuff. Fair use is as nebulously defined as it is because it is, in theory, guided by the principle of upholding the spirit of copyright.
Now, I’m not arguing that training an AI (or generating AI art) isn’t fair use — I don’t feel equipped to answer that particular question. As a layperson, it seems like current copyright laws aren’t really working in this digital age we find ourselves in, even before we consider AI. Though perhaps it’s silly to blame computers for this, when copyright wasn’t really helping individual artists much even before computers became commonplace. Some argue that we need new copyright laws to protect against AI, but Cory Doctorow makes a compelling argument about how this will just end up biting artists in the ass even worse than the AI. Copyright probably isn’t the right lever to pull to solve this particular problem, but it’s still a useful thing to consider if we want to understand the shape of the whole problem.
As I see it, copyright exists because we, as a society, said we wanted to encourage people to make stuff, because that enriches society. However, that goal was in tension with the realities of living under capitalism, so we tried to resolve that through copyright laws. Copyright presented new problems, which led to the fair use doctrine, which comes with problems of its own, with or without AI. The reason people consider AI training to be stealing is because they understand AI as a dire threat to the production of creative works, and they attempt to articulate this through the familiar language of copyright. However, that’s a poor framework for addressing the problem that AI art poses though. We would be better to strip this down to the ethical core of it so we can see the actual tension that people are responding to.
Maybe we need a more radical approach to this problem. One interesting suggestion that I’ve seen is that we should scrap copyright entirely and implement a generous universal basic income (UBI) (and other social safety nets). If creatives were free to make things without worrying about fulfilling basic living needs, it would make the problem of AI scraping far lower stakes for individual creatives. One problem with this is that most people would prefer to earn more than what even a generous UBI would provide, so would probably still feel cheated by Generative AI. However, the argument is that GenerativeAI cannot compare to human artists when it comes to producing novel or distinctive art, so the most reliable wa**y to obtain meaningful art would be to give financial support to the artists (especially if an individual is after something of a particular style). I’m not sure how viable this approach would be in practice, but I think that discussing more radical ideas like this is useful in figuring what the heck to do.
Sidestepping the debate about whether AI art is actually fair use, I do find the fair use doctrine an interesting lens to look at the wider issue — in particular, how deciding whether something is fair use is more complex than comparing a case to a straightforward checklist, but a fairly dynamic spectrum.
It’s possible that something could be:
I’m no lawyer, but I find the theory behind fair use pretty interesting. In practice, it leaves a lot to be desired (the way that YouTube’s contentID infringes on what would almost certainly be fair use, because Google wants to avoid being taken to court by rights holders, so preempts the problem by being overly harsh to potential infringement). However, my broad point is that whether a court decides something is fair use relies on a holistic assessment that considers all four of pillars of fair use, including how strongly each apply.
AI trained off of artist’s works is different to making collage of art because of the scale of the scraping — a huge amount of copyrighted work has been used, and entire works of art were used, even if the processing of them were considered to be transformative (let’s say for the sake of argument that we are saying that training an AI is highly transformative). The pillar that AI runs up against the most though is “the effect of the use upon the potential market”. AI has already had a huge impact on the market for artistic works, and it is having a hugely negative impact on people’s ability to make a living through their art (or other creative endeavours, like writing). What’s more, the companies who are pushing AI are making inordinate amounts of revenue, which makes the whole thing feel especially egregious.
We can draw on the ideas of fair use to understand why so many people feel that AI training is “stealing” art whilst being okay with collage. In particular, it’s useful to ask what the point of fair use is? Why have a fair use exemption to copyright at all? The reason is because one of the purposes of copyright is meant to be to encourage people to make more creative works — if you’re unable to make any money from your efforts because you’re competing with people selling your own work faster than you can, then you’re pretty strongly disincentivised to make anything at all. Fair use is a pragmatic exemption carved out because of the recognition that if copyright is overly restrictive, then it will end up making it disproportionately hard to make new stuff. Fair use is as nebulously defined as it is because it is, in theory, guided by the principle of upholding the spirit of copyright.
Now, I’m not arguing that training an AI (or generating AI art) isn’t fair use — I don’t feel equipped to answer that particular question. As a layperson, it seems like current copyright laws aren’t really working in this digital age we find ourselves in, even before we consider AI. Though perhaps it’s silly to blame computers for this, when copyright wasn’t really helping individual artists much even before computers became commonplace. Some argue that we need new copyright laws to protect against AI, but Cory Doctorow makes a compelling argument about how this will just end up biting artists in the ass even worse than the AI. Copyright probably isn’t the right lever to pull to solve this particular problem, but it’s still a useful thing to consider if we want to understand the shape of the whole problem.
As I see it, copyright exists because we, as a society, said we wanted to encourage people to make stuff, because that enriches society. However, that goal was in tension with the realities of living under capitalism, so we tried to resolve that through copyright laws. Copyright presented new problems, which led to the fair use doctrine, which comes with problems of its own, with or without AI. The reason people consider AI training to be stealing is because they understand AI as a dire threat to the production of creative works, and they attempt to articulate this through the familiar language of copyright. However, that’s a poor framework for addressing the problem that AI art poses though. We would be better to strip this down to the ethical core of it so we can see the actual tension that people are responding to.
Maybe we need a more radical approach to this problem. One interesting suggestion that I’ve seen is that we should scrap copyright entirely and implement a generous universal basic income (UBI) (and other social safety nets). If creatives were free to make things without worrying about fulfilling basic living needs, it would make the problem of AI scraping far lower stakes for individual creatives. One problem with this is that most people would prefer to earn more than what even a generous UBI would provide, so would probably still feel cheated by Generative AI. However, the argument is that GenerativeAI cannot compare to human artists when it comes to producing novel or distinctive art, so the most reliable wa**y to obtain meaningful art would be to give financial support to the artists (especially if an individual is after something of a particular style). I’m not sure how viable this approach would be in practice, but I think that discussing more radical ideas like this is useful in figuring what the heck to do.