In the context of the NYT versus OpenAI case, how does the fair use doctrine apply to the training of AI models on copyrighted material?
In U.S. law, fair use is Section 107 of the Copyright Act.
Essentially, it’s a four-factor test, and it’s notoriously difficult to predict.
OpenAI has a good case, but so does the NYT.
The first factor that goes into the fair use analysis is the purpose and character of the use.
The second is the nature of the copyrighted work.
The fourth is the effect of the use on the market value of the original.
Fair use doctrine calls for the balancing of the factors.
OpenAI’s argument would be that [its use of the material] is transformative.
That is, by using NYT’s work to train a model, it’s not replacing the use of NYT.
OpenAI would cite cases about Google Books, thumbnails, or scraping, where works that don’t replace the original were found to be transformative and therefore fair use.
This is a unique generative Artificial Intelligence (AI) case wherein both the parties are on strong grounds.
NYT has produced evidence which shows verbatim reproduction of content that it owns.
Another important exhibit is that if prompts were directed in a certain manner, it returned a specific paragraph of an NYT article.
That’s something which the court might have to look into.
However, I take the view that the use of copyrighted material for the purpose of training an AI should not be considered infringement because it comes within the broad ambit of the fair use exception.
A word of caution here: the U.S. fair use analysis is broad in scope because there is no purpose-specific limitation.
If you can convince the court through the four factors that Cecilia mentioned or any other additional relevant factors, you might be able to establish that it is fair use.
India doesn’t have a broad exception like the U.S. What we have is a fair dealing exception complemented with a long list of enumerated exceptions.
It is unfortunate that within the enumerated exceptions, we don’t have a specific text and data mining exception.
This means that if a similar case happens in India, the only way we can justify the training might be in terms of fair dealing.
Ideally, they should be doing that.
There are precedents from other parts of the globe, particularly Canada, wherein the courts have made a very liberal interpretation for the purposes mentioned under a similar fair dealing provision.
Fair use as a doctrine goes back to 1841, to a case about copying the writings of George Washington.
A biographer got the copyright to Washington’s papers, and another copied 353 pages of them.
The court at that time came up with this balancing test that we still use.
There is the case [in 1984] between Sony, the maker of the BetaMax videotape recording technology (VCR), and Universal Studios, which argued that the technology could be used for copyright infringement.
Those are the kinds of cases that the courts will look to.
It’s also possible that there is a legislative solution, such as what happened with the Digital Millennium Copyright Act, which is a way for online providers to manage copyright infringement on their platforms.
What is the law on copyright for AI-generated material?
In the U.S., the Copyright Office has said that AI-generated material is not copyrightable, which makes sense since the precedents talk about a human needing to be involved.
Funnily enough, the case that is the best precedent on this is about a monkey.
A monkey in Indonesia took several selfies on a camera set up by a nature photographer.
After several disputes over who can benefit from the copyright of these images, it was shown that neither the photographer nor the monkey can.
This case stands for the proposition in copyright law that there must be an author, which goes back to the U.S. Constitution.
The Indian Copyright Office has sadly messed up on this matter.
There was one application for an AI-generated painting which was initially rejected but when it was submitted again as a jointly authored work by a human and an AI, the Indian Copyright Office accepted it without any deliberation on the consequences or on the question of whether that was allowed under the copyright statute.
When the matter became a controversy, it issued a notice saying that it is withdrawing the copyright.
But when I was looking at the Copyright Office records recently, it looks like that’s still under registration.
If you go by the spirit and letter of the Copyright Act of 1957 in India, there is no way a non-human can be granted copyright protection.
One of the important steps taken by the U.S. Copyright Office recently is that they have issued guidelines categorically mentioning that the applicant should disclose whether AI has been used, and if so, in what manner.
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