Month: January 2024

More Balanced Interpretation of US “Transformation” Fair Use Test gives Rightsholders Better Leverage to Protect their Works

Photo: Author

A couple of recent cases in the US involving (mis)appropriation of copyrighted photographs indicate the tide may be changing with respect to the interpretation of what constitutes fair use, moving from a very liberal interpretation of “transformation” that has been used in recent years to justify unauthorized reproduction of copyrighted works by making them into “something (allegedly) new”, to a more balanced interpretation where the rights of the original creator/rightsholder are given greater weight. These cases are Andy Warhol Foundation v Goldsmith, decided by the US Supreme Court in May of 2023 and now, just last week, two cases (Graham v Prince and McNatt v Prince) in New York District Court. These involved photographers Donald Graham and Eric McNatt who had sued prominent appropriation artist Richard Prince and two well-known galleries, Gagosian and Blum & Poe, for copyright infringement. A final judgment was entered in these cases wherein Prince was found liable for willful infringement of the photographs, required to pay damages totalling five times the value of the infringing works he sold, plus paying the plaintiff’s legal costs, while also being restrained from reproducing, modifying, or distributing the contested artwork that was developed from the appropriated photographs. This is a big deal for photographers and other creators whose work is appropriated by others without authorization on the pretext of “transformation”. It could even have a ripple effect outside the US.

Last week my blog post was about photography, looked at through a historical lens from a copyright perspective. Photographers initially had a struggle to gain copyright protection for their works, at least in the US, but for many years now have enjoyed the benefits of such protection. However, just because photographs are recognized as copyright protected works doesn’t mean that infringement does not occur on a regular basis, or that photographers have not had their work appropriated without authorization as a result of court rulings interpreting what constitutes fair use (in the US).

For those readers not immersed in the minutiae of copyright, what follows is a brief explanation about fair use in the US and fair dealing in Canada. (Others may choose to skip to the next paragraph). Fair use is the provision in US law that allows users to reproduce parts of copyrighted works without permission or authorization from the rights holder, subject to various limitations and conditions. Unlike in Canada or a number of other countries where legal exceptions to copyright are based on a specified list of “fair dealing” purposes, the US fair use list is only illustrative. There is a four-part test in the US that courts use to judge whether an unauthorized use constitutes fair use. The four factors that are weighed are; (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The “transformation test”, which has been an important factor in determining fair use in the US in recent years, comes in under the first category of the purpose and character of the use. Transformative use has been interpreted by US courts to mean the addition of new expression or meaning to an original work to create something new with a different purpose. Parody, which is both a fair dealing exception in Canada and one of the illustrative fair use categories in the US, is such an example where the original work is transformed to give it a new and different meaning. But transformation in the US can involve much more than just parody. The 2015 Google Books case (Authors Guild v Google Inc) where Google was sued for copyright infringement for unauthorized scanning and display of copyrighted works was decided, in Google’s favour, on the basis of “transformation”. The US Court of Appeals found that, “Google’s making of a digital copy to provide a search function is a transformative use, which augments public knowledge by making available information about Plaintiffs’ books without providing the public with a substantial substitute for matter protected by the Plaintiffs’ copyright interests in the original works…”. Notably Google, in settling an earlier case with US publishers, had agreed to limit the public display of a copied work to no more than 20 percent of its contents. The transformative use argument has been used as a fair use defence in a number of US copyright cases, including some involving photography. In these cases, the entire photograph was taken without authorization but then “transformed” by the addition of some new content.

One notable such case is Cariou v Prince, finally decided on appeal in 2013. In this case, Richard Prince successfully claimed fair use for his adaptation of photographs taken by French photographer Patrick Cariou. Prince did a series of paintings that incorporated photos of Rastafarians taken from Cariou’s book “Yes, Rasta”. The Appeal Court found that Prince’s paintings were not only sufficiently transformative to be different works, but they did not compete with the original in the marketplace. This case was part of a trend where US courts successively widened the interpretation of fair use based on a liberal application of the transformation principle.

The antidote to Cariou is the more recent Warhol v Goldsmith case, mentioned above. In this case, celebrity photographer Lynn Goldsmith sued the Warhol Foundation for copyright infringement in 2017 after she learned that her 1981 photograph of the noted singer-songwriter-musician Prince, who died in 2016, (not Richard Prince the artist, just to confuse things), had been used by Warhol (who himself died in 1987) to create a series of 14 silk screen images back in 1984. At the time, Goldsmith had been paid $400 by the publisher Conde Nast for a one time use of her photograph as an artist’s reference for Warhol to create an image for a Vanity Fair article about Prince, Purple Fame, published in November 1984. However, she was unaware that Warhol had created a whole series of prints from her photo. Years later, Vanity Fair paid the Warhol Foundation $10,000 for use of another of the prints in the series, Orange Prince, in an article to mark Prince’s death. Goldsmith was neither paid nor credited. She sued (actually countersued) for infringement after the Foundation sought a declaratory judgment that the creation of the series was fair use. It was an uphill battle for Goldsmith against a very wealthy and well-known Foundation, but in the end she won. The US Supreme Court decided in May of 2023 that Goldsmith’s copyright had been infringed—but only in the one instance regarding the use of Orange Prince, which was seen as a market substitute for Goldsmith’s original photograph. The ruling was 7-2 with Justice Sotomayer writing “Goldsmith’s original works, like those of other photographers, are entitled to copyright protection, even against famous artists”. 

The doors of transformative use, swinging wide open for the past couple of decades, had just closed a bit. It is not irrelevant to note that the transformative use argument is the main fair use defence put forward by AI developers to justify their unauthorized scraping and ingestion of copyrighted content to train generative AI algorithms. Now, on the heels of the Warhol v Goldsmith decision, we have the outcome of the two photographer’s cases against Richard Prince and the galleries. This suggests that the seemingly open-ended “transformation” standard in the US is changing, or at least that the Supreme Court’s Warhol decision is sending a message that open season on photographers (and other creative works) by appropriation artists may be coming to an end.

One of the two photography cases against Richard Prince goes back almost eight years, to about the time that Prince prevailed in the Cariou case. Graham, whose 1998 photograph “Rastafarian Smoking a Joint” was appropriated by Prince, launched his suit in 2016. McNatt’s suit, for infringement of his photograph of musician Kim Gordon, came four years later. Last year Richard Prince tried to get the cases dismissed, but the judge refused. Prince had added very little to the photographs, mostly some gibberish text, yet the “artworks” were sold for substantial sums and exhibited in the prestigious Gagosian Gallery, a co-defendant.

The cases did not go to trial by jury. On January 25, a final judgement was entered by the parties and accepted by the court in which Prince agreed to pay the damages, which were far in excess of what statutory damages would have been. While Richard Prince’s attorneys are claiming that the artist did not admit infringement, the fact that he decided to avoid going to trial and agreed to the damages is a pretty realistic appraisal of what the likely outcome of a trial would have been. Unlike a “settlement”, which the two photographers refused, a “final judgement” is not subject to a confidentiality agreement as to the terms. According to legal counsel representing the photographers, they rejected a confidential settlement (where damages could have been higher) because they wanted the appropriation issue exposed. They succeeded.

It is impossible to know precisely what impact the Warhol/Goldsmith case had on this outcome, but it is surely not coincidental that after almost eight years of litigation (in the case of plaintiff Graham) that Richard Prince decided to put this behind him and cut his losses just months after the Supreme Court’s decision. After Warhol, the Prince case marks another example of some restoration of balance to the interpretation of transformative use. It is not enough to simply add a few features to an original work, and claim it is somehow “transformed” into something entirely different. The lawyer representing the photographers described this as a David versus Goliath case, where a couple of individual photographers took on a major artist and gallery–and won. This demonstrates that fair use as applied in the US clearly has limits and that even the rich and famous can be called to account.

It remains to be seen whether this trend, which started with Warhol, will continue but it is a positive sign for artists wanting to protect their work from unauthorized reproduction and appropriation. The Warhol case has no direct legal impact outside the United States, of course, but it has been taken note of elsewhere. It could mark a turning of the tide. Proponents of further widening copyright exceptions in Canada by modifying fair dealing criteria to be illustrative, as in the US, rather than prescriptive as is currently the case, (by inserting “such as” when describing fair dealing categories) will take little comfort from this. The false allure of more permissive unauthorized copying propped up by the US transformative use doctrine has already seeped across many borders. Now perhaps the counter trend will also spread.

With respect to the Warhol case, one Canadian IP lawyer has stated “I think SCOTUS’s application of fair use to the facts, in this case, will be persuasive to Canadian courts when they have to apply fair dealing to similar facts.” While the transformation doctrine does not directly apply in Canada, it has some applicability with respect to parody. We shall see in time what the long-term impact may be. But from the perspective of creators everywhere, reinserting some much-needed balance into the US fair use transformation standard is a welcome and important development as copyright law continues to evolve.

© Hugh Stephens, 2024.

We All Remember the Iconic Photo of the Last Spike, But Who Was the Photographer?

Photo by author: Revelstoke Railway Museum

A lot of discussion recently has revolved around AI technology and its impact on artistic, musical, and literary creators. This is an evolving and important issue. However, for this week’s blog, I am going to go back to an earlier technology, photography, and look at its connection to creativity and copyright, especially in the Canadian context.

Photography’s entry into the copyright world was not without controversy. For some it was merely a mechanical process, not worthy of protection. But unlike AI-created works (as opposed to works created by humans with some assistance from AI), photography did and does allow human creators to express and interpret the world around them, albeit using a mechanical device.

As many know, in the US it was the arresting Civil War photos of Mathew Brady that convinced the US Congress to add photography to the list of works protected by copyright in 1865,  but it was not until almost twenty years later that this was confirmed by the courts in the Burrow-Giles Lithographic Company v Sarony case in which professional photographer Napoleon Sarony convinced the US Supreme Court this his posed photographs of Oscar Wilde embodied protectable elements of creative expression. The lithographic company had reproduced and sold 85,000 prints of Sarony’s photo without authorization.

In Canada, although photographs were first officially referenced in Canadian legislation in the Copyright Act of 1868, enacted right after Confederation, legal scholar Myra Tawfik, in her meticulously researched new work, “For the Encouragement of Learning”, notes that even though photographs were not mentioned in legislation they were accepted for copyright registration as early as 1859 and in fact became the second largest genre of protected works in the period from 1859 to 1867. (Tawfik, 254-55). Photography also allowed visual artists to gain some protection for their artwork since at the time, prior to 1868, the law did not protect paintings and sculptures. For example, well known artist Cornelius Krieghoff registered photographic representations of a number of his paintings.

One famous photograph that I do know was copyrighted was the famous 1885 depiction of Donald Smith, (later graced with a somewhat more esoteric honorific moniker as Lord Strathcona), driving the supposed last spike of the CPR (Canadian Pacific Railway) to complete Canada’ first transcontinental railway. The copyright was likely registered by the man behind the camera, Alexander (Alex) Ross. I have seen this particular photograph many times as it is one of the more iconic photos in Canadian history. It was seized on by historian Pierre Berton as the inspiration for his 1971 book, The Last Spike, once a popular read along with many of his other historical works. However, I was never aware the photo was copyrighted, nor had I ever seen it labelled as such, nor did I know anything about the photographer, until I stumbled over it in the Revelstoke Railway Museum this past summer.

Back in the day, Revelstoke was a major maintenance centre on the CPR mainline where eastbound steam engines prepared for their long ascent through the mountains. It still plays an important role in track maintenance for the mile long freight trains that now roll through town. It has an interesting museum, with a steam locomotive, various bits of rolling stock and lots of artifacts. In one of its halls, I came across the familiar Last Spike photo, with the word “Copyright” clearly marked on it (as you can see from my photo of the photo). This immediately caught my eye and made me wonder about the person who had been up in the mountains that day (November 7, 1885) and captured this event for posterity.

In the photo, Smith is seen pounding in the last spike (an ordinary iron spike; no precious metals for the cash-strapped CPR) at Craigellachie (45 kilometres west of Revelstoke) in the Monashee Mountains to complete the CPR’s coast-to-coast construction. Smith was a senor Director of the CPR and the most senior company representative present, with neither the company president nor the Governor-General, the Marquess of Lansdowne (whose actual name was Henry Charles Keith Petty-Fitzmaurice, a tad fancier than just plain Mr. Smith), being available to travel to BC for the ceremony. Smith had already had a successful business career by this point and later went on to achieve further prominence through politics and philanthropy, personally raising a cavalry regiment for the South African War, named after him. Lord Strathcona’s Horse is now a regular-force armoured regiment in the Canadian Army. Smith (Strathcona) also served for many years as Canadian High Commissioner to the UK. Others in the photo are the white-bearded stern looking railway engineer and surveyor Sandford Fleming (with top hat), later known as the “Father of Standard Time Zones”, William Cornelius van Horne, the American General Manager of the CPR (later its President) and Sam Steele of the NorthWest Mounted Police, who later became the first Commanding officer of the Strathcona’s when they were formed in 1900. (Fleming, van Horne and Steele were all later knighted by Queen Victoria). There is also a young boy, Edward Mallandaine, who had thrust himself into the picture just before the photographer snapped it. Mallandaine, who was actually 18 at the time although looking much younger, went on to a career as an architect, and was a founder of the City of Creston, BC, living until 1949. All these facts, names and faces are quite well known, but what of the photographer?  

According to the Canadian Encyclopedia, Calgary-based Alexander Ross was a last minute stand in for the expected photographer who did not show up. Ross (born 1851) was originally from Pictou, Nova Scotia and took up photography in his twenties and with his younger brother formed Ross Brothers Photography. It was successful and in 1878 won first prize for photography at the Nova Scotia Provincial Agriculture and Industrial Exhibition in Truro. He subsequently left Nova Scotia and moved west, joining a partner, John Best, to form Ross, Best and Company. In the latter half of the 1880’s Ross became well known for many photographs of Indigenous peoples, particularly from the Blackfoot nation. Many of these photos are an indelible record of a seminal time in history. However, Ross closed his studio in 1891 and died at the early age of 43 three years later. The CPR must have licensed the photograph from Ross as it disseminated the image widely to promote the railway, or perhaps the company owned the copyright as a commissioned work. At the time Ross took the photo, it would have remained under copyright until 1913 with a possible extension to 1927. Under new legislation introduced in 1921 and enacted in 1924, the copyright would have been extended to 1935. But of course, it is now in the public domain, notwithstanding the prominent display of the word “copyright” on the print in the Revelstoke Museum. The Museum’s copy must be an old one, probably inherited from the former CPR passenger station.

In Canada, copyright registration was first entrusted to the Department of Agriculture when the Dominion government was established in 1867 and legislation (The Copyright Act of 1868) was passed to protect “any book, map, chart or musical composition, or any original painting, drawing, statuary, sculpture or photograph”, as well as etchings, designs, engravings or prints for a period of 28 years from the date of creation, with the possibility of adding an addition 14 years (for a total of 42) if applied for prior to the expiration of the original term. This was consistent with British legislation current at the time.

The 1921 Canadian Copyright Act extended the term of protection to 50 years from date of creation and in the late 1990s further revisions provided photographs with the same degree of protection as other forms of creativity, that is to say the lifespan of the author plus 50 years. Further revisions were made in 2012 to place copyright ownership of commissioned photographic works taken by freelance photographers in the hands of the photographers by default rather than in the hands of clients. Previously, freelance photographers had to request that clients assign the copyright of commissioned works to them as part of contractual terms. (The copyright on photographs taken for an employer as part of an employment contract remains with the employer). More recently, (December 30, 2022) the term of protection in Canada was extended to the lifespan of the author plus 70 years.

Early photographers in Canada, such as Ross and Geraldine Moodie (“Geraldine Moodie and her Pioneering Photographs: A Piece of Canada’s Copyright History”) took all the appropriate steps to protect their work, in the case of Moodie going to inordinate trouble given her remote location. We are lucky they did. Photographic images bring history to life and without the person behind the camera capturing the scene with their artistry, the image of the Last Spike would not be there to remind us of the enormous nation-building and business enterprise that came into being 150 or more years ago at Craigellachie.

© Hugh Stephens, 2024. All Rights Reserved.

Artificial Intelligence and Copyright: The Canadian Cultural Community Speaks Out

Image: http://www.shutterstock.com

The extended period set by the Canadian Government (through Innovation, Science and Economic Development Canada, ISED) for response to its consultation paper on Artificial Intelligence (AI) and Copyright closed on January 15. We will start to see a flurry of submissions released by participants while ISED digests and assesses the input it has received. One of the first is the submission from the Coalition for the Diversity of Cultural Expression (CDCE), which represents over 360,000 creators and nearly 3,000 cultural businesses in both French and English-speaking parts of Canada. CDCE’s membership includes organizations representing authors, film producers, actors, musicians, publishers, songwriters, screenwriters, artists, directors, poets, music publishers—just about every profession you can think of that depends on creativity, and protection for creative output. The CDCE submission highlights three key recommendations, summarized as follows;

  • No weakening of copyright protection for works currently protected (i.e. no exception for text and data mining to use copyrighted works without authorization to train AI systems)
  • Copyright must continue to protect only works created by humans (AI generated works should not qualify)
  • AI developers should be required to be transparent and disclose what works have been ingested as part of the training process (transparency and disclosure).

While none of these recommendations are surprising, and from my perspective are eminently reasonable, I am sure we will also see a number of submissions arguing that, “in the interests of innovation”, access to copyrighted works is not only essential but should be freely available without permission or payment. OpenAI, the motive force behind ChatGPT—and the defendant in the most recent high-profile copyright infringement case involving AI (When Giants Wrestle, the Earth Moves (NYT v OpenAI/Microsoft)—has already staked out part of this position. In its brief to the UK House of Lords Select Committee looking into Large Language Models (LLMs), a key technology that drives AI development, the company says;

“Because copyright today covers virtually every sort of human expression–including blog posts, photographs, forum posts, scraps of software code, and government documents–it would be impossible to train today’s leading AI models without using copyrighted materials (emphasis added). Limiting training data to public domain books and drawings created more than a century ago might yield an interesting experiment, but would not provide AI systems that meet the needs of today’s citizens.”

OpenAI claims that it respects content creators and owners and looks forward to continuing to work with them, citing among other things, the licensing agreement for content it has signed with the Associated Press. But failure to reach a licensing deal with the New York Times is really the crux of the lawsuit that the media giant has brought against OpenAI and its key investor Microsoft. If reports are true that OpenAI’s licensing deals top out at $5 million annually, it is not surprising that licensing negotiations between the Times and OpenAI broke down over such lowball offerings.

As for the CDCE submission to ISED, it recommends that the government refrain from creating any new exceptions for text and data mining (TDM) since this would interfere with the ability of users and rightsholders to set the boundaries of the emerging market in licensing. No copyright exemption for AI is what the British government has just confirmed, after playing footsie with the concept for over a year. Apart from the examples of the licensing deals that OpenAI has with the Associated Press and German multimedia giant Axel Springer, the CDCE paper notes a range of other recent examples of content owners offering access to their product through licensing arrangements, including Getty Images, Universal Music Group and educational and scientific publishers like Elsevier. The paper also urges the government to avoid interfering in the market when it comes to setting appropriate compensation, leaving it to market players or, where the players can’t reach agreement, to the quasi-judicial Copyright Board.

In my view, licensing is going to be the solution that will eventually level the playing field, but to get there it will require that major content players lockout the AI web-crawlers while pursuing legal redress, as the NYT is doing. This will help to open the licensing path to smaller players and individual creators who don’t have the resources available to employ either technical or legal remedies. (The issue of what has already been ingested without authorization still needs to be settled). As for the tech industry’s suggestion that creators can opt-out of content ingestion if they wish, CDCE rightly points out that this is standing the world on its head, and would be contrary to longstanding copyright practice. Not only is it impractical in a world where what goes into an AI model is a black box (thus the imperative for transparency) but it is like saying a homeowner has to request not to be burgled, or else can expect to become a target.

On the question of whether AI generated works should be granted copyright protection, CDCE points out the double-standard of proposing an exception to copyright for TDM for inputs while claiming copyright protection for AI generated outputs. The need for human creativity is a line that has been firmly held by the US Copyright Office, pushing back on various attempts to register AI-generated (as opposed to AI-assisted) works. Canada has not been quite so clear cut in its position, owing to the way in which copyright is registered (almost by default, without examination) in Canada, as I pointed out in this blog post (A Tale of Two Copyrights). While AI generated works have received copyright protection in Canada (Canadian Copyright Registration for my 100 Percent AI-Generated Work), this is more by oversight than design, given the way the Canadian copyright registration system works.

Thirdly, we turn to transparency, a sine qua non if licensing solutions are to be implemented.  If authors don’t know whether their works are being used to train AI algorithms, or can’t easily prove it, licensing will fall flat. CDCE calls for publication of all content ingested into training models, disclosure of any content outputs that contain AI, and design of AI models to prevent generation of illegal or infringing content. This is similar to requirements already under consideration in the EU.

CDCE also makes the important point that it is not just copyright legislation that defends individual and collective rights against the incursions of AI and big AI platforms. While the Copyright Act offers some protection to creators, privacy legislation is important for all citizens. As the UK Information Commissioner has pointed out in a recent report, the legal basis for web-scraping is dependent on (a) not breaching any laws, such as intellectual property or contract laws and (b) conformity with UK privacy laws (the GDPR, or General Data Protection Regulation), where the privacy rights of the individual may override the interests of AI developers, even if data scraping meets other legitimate interest tests.

Finally, there is the question of the moral rights of creators that can be threatened by misapplication of AI, whether it is infringement of a performer’s personality or publicity right, distortion of their performance or creative output, misuse of their works for commercial or political reasons or any of the other reasons why copyright gives the creator the right to authorize use of their work.

Quite apart from the question of AI, there are of course other outstanding copyright questions that need to be resolved urgently, including the longstanding issue of the ill-conceived education “fair dealing” exception that has undermined if not permanently damaged the educational publishing industry in Canada. This exception needs to be narrowed to allow users continued unlicensed access to copyrighted materials under fair dealing guidelines for study, research and educational purposes but to limit institutional use to situations only where a work is not commercially available under a license from a rightsholder or collective society. While this issue requires looking back and fixing something that is already broken, policy making with respect to AI and copyright needs to anticipate the future and “do no harm”, while requiring AI developers to open up their black boxes and respect existing rights. This should be achieved by maintaining and protecting the rights of creators in ways that will facilitate market-based licensing solutions for use of copyrighted content by AI developers, while ensuring that creative output remains the domain of human beings, and not machines.

© Hugh Stephens, 2024.

There’s a Good Reason it’s not called “Artificial Creativity”

Image: Shutterstock

There has been lots of ink spilled over the issue of Artificial Intelligence (AI) developers free riding on the backs of creators by copying and ingesting their content without permission to produce AI “created” content, output that sometimes competes directly in the market with the original work. The most recent high-profile case involving this process is the complaint brought by the New York Times against OpenAI and indirectly Microsoft. Last week, I wrote about that case here. (When Giants Wrestle, the Earth Moves: NYT v OpenAI/Microsoft).

AI developers defend themselves by arguing, in the US context, that their actions constitute fair use. They claim that what they’re doing is no different from, say, an art student studying works by the Old Masters, imbibing inspiration from them, and then producing their own original work. The result of the AI process, they argue, is the same. It is creating something new through a “transformative” process such as the one that happens when a creator (artist, writer, composer, or other creator) takes inspiration from early works but then produces something new and original. The new work constitutes their own expression of the idea of which the earlier work was but a representation. However, there is a fundamental flaw with this argument when it comes to AI.

The argument presupposes that all creativity is merely a new combination of existing knowledge. Is creativity merely a rearrangement of what came before or is there an additional X factor introduced when something new is created? Does this X factor exist in AI-created works, or is AI exclusively based on the corpus of existing knowledge? Judging by the way it is trained, one must conclude it’s the latter. The algorithm is fed vast amounts of existing content that it regurgitates in response to prompts. Sometimes the inputs are not evident, especially if there are vast numbers of them; sometimes they are all too evident as in the case of ChatGPT producing virtually verbatim excerpts from the New York Times. But in neither case is it apparent to me that anything truly “new” or “creative” has been produced. An AI algorithm is not a proxy for the human brain or for human creation.

Even with vast numbers of inputs scraped from the internet—the good, bad and the ugly—an AI machine can only produce what it has been exposed to. Sometimes it produces a mish-mashed version of what it has been fed, where individual inputs are not obvious. At other times it resorts to total plagiarism, and at yet other times it produces a pale and shallow imitation of the original. So why not go to the original? Moreover, the conclusions AI draws from the data it has been trained on can be, and often are, completely wrong from a factual point of view. The NYT complaint outlined convincingly how AI can just make up answers from its database when it doesn’t have the facts. I suppose you could say this shows an element of “creativity”, but it is creativity of a blind and completely irresponsible kind.

In reflecting on this, I am thinking of my own modest efforts at creativity, particularly my recent book, “In Defence of Copyright”. As an AI machine would do, I consulted a lot of sources (but did not copy their work other than to register the content in my brain and make a few notes where I wanted to cite something specific.) I then stitched together a narrative that drew on a lot of existing knowledge, with proper citations and credit of course. However, along the way, as part of the writing process, elements of personal creativity inevitably crept in. Personal experiences that only I have had influenced my thinking and conclusions. No one else could have produced this work in exactly the same way, even if I had given them all my reference materials. The shaping of the book came from me.  I decided what to put in and what to leave out. I decided the order of the presentation. I decided how various points would be expressed, what the tone would be, and what particular terms and references to use. And I drew the conclusions in the book. Could an AI “machine” have done this?

If I had put in the prompts, “write me a book explaining what copyright is and how it works, why it’s important, covering its history and current challenges, providing some examples of controversies in copyright law along with some case studies and entertaining anecdotes”, AI would have produced a generic version but I doubt that the work would bear much similarity to my expression of these ideas. It would have a pastiche of ideas of others but without the X factor of personal interpretation.  

If you want something “new” and truly creative, with new insights and elements, don’t rely on AI. It can’t create what it has not been fed, although it can get the content wrong. AI has no true creative capabilities; in my view it is simply an artificial reorganization of existing ideas.

And while I am on the topic of creativity, even though I swore that unlike in the past I would not be tempted this year to comment on the annual hyperbole about works coming into the public domain, like Disney’s Steamboat Willie, I am going to succumb. Willie has managed to capture the usual facile press attention devoted to the annual crop of works that fall into the public domain in the US each January 1. I was provoked to make these comments by an interview on CBC radio in which a law professor at UBC, after providing a balanced and thoughtful overview of what Willie’s entry into the public domain in the US means in Canada, and how those wishing to use Willie’s image to create new works need to be careful, then waxed on about how meaningful this was because it would unleash a flood of creative derivative works based on the 1928 cartoon version of Mickey. A horror version, where Mickey as Willie is depicted as a violent slasher, is one of the first out of the gate  It is directed, I am ashamed to say, by a Canadian. Variety has a story about another equally inane production, this one American, in which Mickey torments a group of unsuspecting ferry passengers. How has the world been able to survive without these creations until now?

Our professor, who is a comic book fan, enthused about how exciting it will be when Superman enters the public domain. Superman derivatives will then be freely produced by all these people waiting to clip his wings. Superman was first published by DC Comics in 1938 so it will be a while before his image will be defaced by “creators” seeking to, in effect, free ride on the reputation of a successful character who has been developed over the years by the rights-holder. Of course, the idea of a flying human with supernatural powers cannot be copyrighted. It is the expression of that particular idea, in this case in the personality of Superman, that is protected. The existence of a range of other superheroes, including some who can fly, such as Captain Marvel and Green Lantern, is ample proof of this. So why do all these creative people, who now have access to all kinds of technology to produce content attractive to consumers, need to exploit an existing character, and make it do weird and out-of-character things? Because they are not truly creative!

A true creator would invent a new character, not exploit one where all the heavy lifting of building name recognition has been done by someone else. Successful writers may be inspired by the works of other authors, but they don’t wait until those works fall into the public domain and hijack the characters and reputation of the work to produce a warmed-over version of the original. I can’t understand why supposedly creative people are so obsessed by well-known works falling into the public domain, especially if they have the name Disney associated with them. Is it because they need the crutch of the Disney reputation to get anyone to pay attention to works that hardly matter—and lack much creativity?

Anything for a quick buck, I guess, using the veneer of “creativity” to justify what is really a paucity of imagination. AI is not all that different. It can produce content that is “good enough” for some routine and mundane purposes, but in doing so it risks stifling true creativity. AI needs to be harnessed for the greater good, not allowed to become the dominant producer of content, in the process threatening to replace true and original creation. Once the well of human creation dries up, there will be no water to lubricate the AI machine. We need to manage AI carefully or face the consequences of a cultural drought.

© Hugh Stephens, 2024

When Giants Wrestle, the Earth Moves (NYT v OpenAI/Microsoft)

Image:www.shutterstock.com

There is no better way to start out the New Year, 2024, with a commentary on Artificial Intelligence (AI) and copyright. It was the big emerging issue in 2023 and is going to be even bigger in 2024. The unlicensed and unauthorized reproduction of copyright-protected material to train AI “machines”, in the process often producing content that directly competes in the market with the original material, is the Achilles heel of AI development. To date, no one knows if it is legal to do so, in the US or elsewhere, as the issue is still before the courts. The cases brought to date by artists, writers and image content purveyors like Getty Images have not always been the strongest or best thought out. In one instance, the plaintiffs had not even registered the copyright on some of the works for which they were claiming infringement, a fatal flaw in the US where registration is a sine qua non in order to bring an infringement case. That may have been the most egregious example of a rookie error but in general the artists’ and writers’ cases have not gone too well so far, although the process continues. Some cases are on stronger grounds than others. Here is a good summary. The Getty Images case will be an interesting one to watch. And now the New York Times has weighed in with a billion-dollar suit against Open AI, and Microsoft. The big guys are now at the table and the sleeves are rolled up. The giants are wrestling.

What is at issue could be nothing less than the survival of the news media and the ability of individual creators to protect and monetize their work. It could also open a pathway to legitimacy for the burgeoning AI industry. The ultimate solution is surely not to put a halt to AI development, nor to put content creators out of business. It is to find a modus vivendi between the needs of AI developers to ingest content in order to train algorithms that will “create” (sort of) content–assembled from vast swathes of input–and the rights of content creators. While training sets are generally very large, some of the input can be very creator-specific and the output very creator-competitive. This is where the New York Times comes in.

The Times, like any enterprise, needs to be paid for the content it creates in order to stay in business and create yet more content. If its expensively acquired “product”, whether news, lifestyle, cooking, book reviews or any of the other content that Times’ readers crave and are willing to pay for, can be obtained for free through an AI algorithm (“What is the most popular brunch recipe in the NYT using eggs, bacon and spinach”, or “What does Thomas Friedman think of…..”), this creates a huge disincentive to go to the source and undermines journalism’s business model, already under severe stress and threat.

The Times is one of the few journals that has managed to thrive, relatively speaking, in the new digital age at a time when many of its competitors are dying on the vine. According to Press Gazette, the New York Times is the leading paywalled news publisher, with 9.4 million subscribers. (Wall Street Journal and Washington Post are numbers two and three respectively). You need to pay to read the Times, and why not? But paying for access does not give you the right to copy the content, especially for commercial purposes. (The Times offers various licensing agreements for reproduction of its content, with cost dependent on use). Technically, all it takes is one subscription from OpenAI and the content of the Times is laid bare to the reproduction machines, the “large language models”, or LLMs, used by the AI developers. The Times has now thrown down the gauntlet. Its legal complaint, 69 pages long, makes compelling reading. If there ever was a “smoking gun” putting the spotlight directly on the holus-bolus copying and ingestion of copyright protected proprietary content in order to produce an unfair directly-competing commercial product that harms the original source, this is it. It’s a far cry from earlier copyright infringement cases brought by some artists and writers.

While you can read the complaint yourself if you are interested (recommended reading), let me tease out a few of the highlights. After setting out the well-proven case for the excellence of its journalism, the Times’ complaint notes that while the defendants engaged in widespread copying from many sources, they gave Times’ content particular emphasis when building their LLMs, thus revealing a preference that recognized the value of that content. The result was a free ride on the journalism produced at great expense by the Times, using Times’ content to build “substitutive products” without permission or payment.

Not only does ChatGPT at times regurgitate the Times’ content verbatim, or closely summarizes it while mimicking its style, at other times it wrongly attributes false information to the Times. This is referred to in AI circles as “hallucination”, something the complaint labels misinformation that undermines the credibility of the Times’ reporting and reputation. Hallucination is a particularly dangerous element of AI produced content. Rather than admitting it doesn’t know the answer, the AI algorithm simply makes it up, complete with false references and attributions all of which make it very difficult for the average reader to separate fact from fiction. This misinformation is the basis of the Times’ complaint for trademark dilution that accompanies various other copyright related complaints of infringement. Concrete examples of such misinformation are provided in the complaint.

So too is ample evidence of users exploiting ChatGPT to pierce the Times’ paywall, by asking for the completion of stories that have been blocked for non-subscribers. There are concrete examples of carefully researched restaurant and product reviews that have been replicated virtually verbatim. Not only is the Times’ subscription model undermined, but the value it derives from reader-linked product referrals from its own platform bleeds to Bing when the product is accessed through Microsoft Search enabled by ChatGPT. Examples are given of full news articles based on extensive Times’ investigative reporting being reproduced by ChatGPT, with only the slightest variations. These are not composite news reports of what is happening in Gaza, for example, but a word-for- word lifting of a Times’ analysis of what Hamas knew about Israeli military intelligence. The Times’ complaint makes for chilling reading. AI’s hand has been caught firmly in the cookie jar.

What does the Times want out of all of this? The complaint does not specify a dollar amount, while noting the billions in increased valuation that has accrued to OpenAI and Microsoft as a result of ChatGPT. However, it asks for statutory and compensatory damages, “restitution, disgorgement, and any other relief that may be permitted by law or equity” as well as destruction of all LLM models incorporating New York Times’ content, plus, of course, costs. If the Times gets its way, this will be a huge setback for AI development as well as for OpenAI and Microsoft, but of course it may not come to that. The complaint notes that the Times had tried to reach a licensing deal with the defendants. OpenAI cried foul, expressing “disappointment”, and noting that they had been having “productive” and “constructive” discussions with the Times over licensing content. However, to me this is a bit like stealing the cookies, getting caught red-handed and offering to negotiate to pay for them, then crying foul when your offer is rebuffed. The Times has just massively upped the ante, making the potential licensing fees much more valuable.

The irony is that the use of NYT material by OpenAI or indeed other platforms like Google or Facebook potentially brings some advantage and drives some business to the Times, while obviously also providing commercial benefits to the AI program, search engines or social media platforms. The real question will be how that proprietary content is used, and how much is paid to use it. A similar issue is being played out in another context, most recently in Canada with Bill C-18 where news media content providers wanted the big platforms (Google and Meta/Facebook) that derive benefit from using or indexing that content to pay for accessing it. The result in Canada was both a standoff and a compromise. Facebook blocked Canadian news content rather than pay for it, while Google agreed to create a fund for access by the news media in return for being exempted from the Canadian legislation.

The NYT-OpenAI/Microsoft lawsuit is a different iteration of the same principle. Businesses that gain commercial advantage from using proprietary content of others should contribute to the creation of that content, either through licensing or some other means such as a media fund. The most logical outcome of the Times’ lawsuit is almost certainly going to be a licensing agreement. Given the seemingly unstoppable wave of AI development, meaningful licensing agreements would seem to be the best way to ensure fairness and balance of interests going forward.  

A Goliath like the New York Times is in a much better position to make this happen than a disparate group of writers and artists. Indeed, there are logistical challenges in being able to license the works of tens of thousands of content creators. In an earlier blog post, I postulated that perhaps copyright collectives might find a role for themselves in this area in future. In my view, ultimately the only logical solution to the conundrum of respecting rights-holders while facilitating the development of AI is to find common ground through fair and balanced licensing solutions. The wrestling giants of the NYT and Microsoft may help show the way.

© Hugh Stephens 2024. All Rights Reserved.