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Australia just took an important stand in the tug-of-war being waged in many countries over whether, how and to what extent tech companies can use copyrighted content (text, music, images and so on) to train AI platforms by reproducing the content and extracting its essence without permission or compensation to rightsholders. Attorney-General Michelle Rowland has announced that while Australia will be undertaking consultations on revisions to its copyright laws to help address the needs of the AI industry, a Text and Data Mining (TDM) exception has been ruled out. Some countries, like the UK, have TDM exceptions for limited purposes (such as research and non-commercial use) in their laws while several other countries have TDM under review. Existing TDM exceptions allow reproduction of copyrighted content without the authorization of the rightsholder for research, data analysis, and in some cases for AI training purposes.
There is currently no TDM exception in Canadian law but as I noted in a recent blog post (“Canada’s Creative Sector Uneasily Awaits the Carney Government’s Next Steps on AI Training”), pressure is building from the AI sector to incorporate TDM into Canada’s Copyright Act. The government currently has yet another consultation paper on AI out for public comment and the Canadian cultural sector is organizing to protect creator’s rights, specifically calling on the Canadian government to “ensure that the Copyright Act is not modified through an exception permitting Text and Data Mining (TDM) or any other exception allowing technology developers or users to use protected works…to train generative AI systems without authorization or compensation…”. In doing so, it is taking a leaf from the book of Australian creators who mounted strong opposition to a proposal from the Productivity Commission, (PC) an independent research and advisory body created by an Act of Parliament some 25 years ago, that proposed in a report in August that Australia adopt a TDM exception. To say that this proposal put the cat amongst the pigeons would be an understatement.
The Commission has a reputation for denigrating the value of intellectual property and seeing it as an obstacle to industrial development rather than as an essential partner. In 2015 it proposed shortening the term of copyright protection from the current life of the author plus seventy years (“life plus 70”), a generally accepted international standard, to just “life plus 15”, (far lower than the Berne Convention minimum and a standard not adopted anywhere) while introducing a US-style fair use regime into Australia. There was strong pushback then, (it didn’t happen) and there was strong pushback this year (see here and here, for example) when the PC proposed introducing a TDM exception. It was particularly criticized for its lack of consultation with the creative industries in developing this proposal.
Now the Australian government has put its foot down, ruling out TDM but indicating that it will look at alternative solutions. These include examining whether to establish a new “paid collective licensing framework” under the Copyright Act for AI, or whether to maintain the status quo through voluntary licensing, clarifying how copyright law applies to material generated through the use of AI (i.e. whether there should be copyright protection for outputs produced by or with AI) and looking at the establishment of a new small claims forum to address lower-value copyright infringement matters.
It is generally accepted that AI is here to stay and will continue to need vast amounts of content for training. In most cases, copyrighted content is the kind of curated, high value work that AI developers need but until now, have preferred to appropriate without permission rather than pay for through licensing. In effect they have decided to ask for forgiveness after rather than permission beforehand. This has led to a plethora of lawsuits globally, including the recent $1.5 billion settlement that Anthropic has agreed to pay out to settle a class action suit brought by authors in the US. “Forgiveness” can be expensive. Inside the US, AI developers are arguing their copying is fair use, although at the same time they are beginning to hedge their bets by licensing content from a number of sources, ranging from media to music to image companies. Outside the US, AI companies have been beating the TDM drum, hoping that creation of wide TDM exceptions will obviate the need to negotiate with content owners. Nonetheless, voluntary licensing is growing globally. However, the surest way to kill a nascent licensing market is to give the tech industry a “get out of jail free” card by introducing a broad TDM exception. Australia has just rejected that option. Canada and others considering introducing new, or broadening existing, TDM loopholes should do the same.
It is not clear where Australia’s AI and Copyright review will end up, other than to note that it will not include TDM. As I have noted above, among other things it will be considering “collective licensing”. Collective licensing could help address the problem of remunerating individual rightsholders, in contrast to licence agreements signed between AI developers and corporate entities like media companies. However, Australia needs to steer clear of compulsory licensing which strips away the rights of copyright owners. Compulsory licences authorize use upon payment of a statutory or negotiated fee but remove the right of a copyright holder to withhold consent for use, or to impose specific limitations. A voluntary licence framework is fair to everyone. Compulsory licensing is not.
Canada and Australia have many things in common, (as well as a number of differences of course, beyond poutine vs vegemite). Among their commonalities is the desire to protect and foster a unique cultural identity in the face of global cultural homogenization. This is even more important in Canada given the realities of the struggle faced by 6 or 7 million Francophones to preserve their culture in a sea of 375 million Anglophones. Canada followed Australia’s lead (although less successfully) in requiring major online platforms to contribute financially to (i.e. pay for the use of) news media content. It should do the same by putting the idea of a TDM exception firmly to one side and instead focus on encouraging the development of voluntary licensing market for copyrighted content when used in AI training.
© Hugh Stephens, 2025. All Rights Reserved.
