On Friday, the US Copyright Office issued part three of its continuing discussion of copyright and artificial intelligence, a series of reports meant to offer nonpartisan and expert analysis. Part one addressed digital replicas—can AI legally copy you?—and part two addressed the copyrightability of AI-generated and AI-assisted work. (I summarized the findings of part two in February.)
Part three covers the use of copyrighted work to train AI models and whether it constitutes fair use or requires licensing. While the Copyright Office believes that AI training can be transformative and the report is not anti-AI, it also says that certain uses of AI models may affect the market for copyrighted work—an important consideration when determining fair use. Here is an extensive summary of the relevant portions of the report, which runs more than 100 pages.
The money quote: “The speed and scale at which AI systems generate content pose a serious risk of diluting markets for works of the same kind as in their training data. That means more competition for sales of an author’s works and more difficulty for audiences in finding them. If thousands of AI-generated romance novels are put on the market, fewer of the human-authored romance novels that the AI was trained on are likely to be sold. Royalty pools can also be diluted. Universal Music Group noted that ‘[a]s AI-generated music becomes increasingly easy to create, it saturates this already dense marketplace, competing unfairly with genuine human artistry, distorting digital platform algorithms, and driving “cheap content oversupply”—generic content diluting human creators’ royalties.’ Market harm can also stem from AI models’ generation of material stylistically similar to works in their training data.”
The report’s ultimate conclusion: “Making commercial use of vast troves of copyrighted works to produce expressive content that competes with them in existing markets, especially where this is accomplished through illegal access, goes beyond established fair use boundaries.” It suggests that AI licensing deals, which are already well underway, continue without government intervention. Publishers Weekly offers more commentary.
- Related: Publishers Weekly discusses how publishers are preparing for a “battle” with Big Tech over AI and copyright.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
