Image: Author (Tofino, BC)
Australian Prime Minister Anthony Albanese caught global attention in mid-July with his speech at the University of Sydney, “AI in Australia’s Interests”. That address, which outlined the Australian government’s approach to AI, included important statements regarding the work of Australia’s creative community, which Albanese declared is “not up for grabs”. Having previously ruled out the creation of a copyright loophole for AI training, known in the trade as a “Text and Data Mining” (TDM) exception, Albanese went on to say that;
“Australian writers, musicians, artists and journalists must retain ownership and control of their work…No company should use Australian books, music, art or news to build or train AI without the artist’s control…of the price and value of their work. Anything less is theft.”
Bravo! Hopefully this means what it says, that rightsholders will retain control and receive compensation on their terms if their works are used for AI training, even though there is still strong pressure from segments of the AI world for Australia to loosen its terms of copyright protection. Anthropic is dangling a $20 billion carrot in the form of potential investment in AI data centres in Australia but only if there is a copyright carve-out for AI training. One Anthropic proposal was for the creation of a $350 million fund to compensate rightsholders, paid for by the AI industry, but it was unclear how this would operate or if rightsholders would be required to opt-out if they didn’t want their content used. For creators to be able to control their work within the accepted framework of copyright law, they must have the ability to accept or reject voluntary licensing and not be required to opt-out of a compulsory scheme where what they receive is decided by bureaucrats on the basis of limited contributions to a common fund. The commitments that Albanese made in his speech indicate that voluntary licensing is the preferred solution, but the issue remains under study (hopefully this will be done with full transparency, following suggestions earlier this year of secret dealings on this critical matter of public interest). Nonetheless, the bright line that Albanese has drawn with regard to creatives retaining control of their work is welcome and will hopefully encourage other governments who are developing AI policy to do the same.
As noted, the AI industry never gives up. Having been clearly told that creators should retain control over how their work is used, and be paid for that use, some companies are floating new objections based on the supposed “long tail” argument. “Long tail” is the term being used to describe the many small rightsholders who create and therefore (in theory but maybe not in practice) control use of their content, as opposed to larger rightsholders such as major publishers of books, journals and newspapers, music labels, film studios and so on with whom it is easier to engage in licensing discussions. The argument is that, even if the AI industry wanted to license the content that it uses in training (by no means a given with every company), it can’t possibly deal with the myriad of small rightsholders. Elsewhere, some AI developers have dealt with this problem by ignoring it, simply helping themselves to whatever content they wanted, without licence. In some cases, they even used pirate libraries as sources, almost daring rightsholders to bring legal challenges. Anthropic is a high-profile culprit that got caught doing this.
One idea currently being promoted by Anthropic is to create a statutory licence that would be restricted just to Australian rightsholders, with funds directed only to them. It is hard to see how this is a viable solution. Not only would it violate international norms that Australia has committed to by discriminating against foreign rightsholders in the Australian market, if it is applied universally, it would lead to a stream of royalties flowing out of Australia while doing little to help local creators. Elsewhere, various non-statutory collective licensing schemes have been proposed to deal with the issue of small rightsholders, although to date none have emerged that provide true one-stop shopping for AI developers. But a compulsory licence cannot be the solution. These large companies with stratospheric valuations (especially those getting ready to launch an IPO!) surely have the wherewithal to find ways to license the content they use and will continue to use as they develop and refine their AI models.
For the past several years the tech community has followed the “better to ask for forgiveness after rather than permission before” approach when appropriating copyright protected content to develop AI platforms. The inevitable result has been a spate of lawsuits, most of which are still ongoing, with results varying from case to case and jurisdiction to jurisdiction. A second front opened by some AI platforms has been to attempt to weaken copyright protection through legislation, focussing particularly on the introduction of a broad TDM exception. As a result of this push, many countries began studying whether to bring in a TDM carve-out, or if they had a narrow TDM exception (e.g. for non-commercial research purposes) whether to widen it. From the perspective of rightsholders, it began to look like a race to the bottom. Now, the tide seems to be changing. Albanese’s speech is a good example of the shift, but Australia is not alone in taking a more considered and balanced approach.
Hong Kong is a case in point. Hong Kong has always had one of the stronger intellectual property regimes in the region, a source of competitive advantage. But under the pressure of blandishments from the tech community, it issued a consultation paper in 2024 that, among other things, proposed a TDM exception–including for commercial purposes. When the paper went out for public comment, the predictable suspects urged adoption of a TDM provision while rightsholder groups argued that existing law and voluntary licensing was suitably flexible to handle issues arising from new technologies. Now the Hong Kong Government has concluded there is no pressing need to pursue a TDM exception through legislation. The priority will be to issue best-practice guidelines grounded in the existing legal framework, providing reference for stakeholders on copyright protection and infringement liability relating to AI-generated works. Voluntary licensing arrangements between copyright owners and AI developers are seen as the answer.
I noted in a blog post last year that the TDM issue was under review in a number of Asian jurisdictions, including India, Malaysia and Korea. In India, a government-commissioned working group recommended a compulsory licence scheme that displeased just about everyone, from the tech gurus to India’s cultural creators, although to the working group’s credit, it also rejected a TDM exception for India. The lack of momentum for this idea means that current copyright legislation continues to apply, albeit with Indian courts starting to weigh in, (but unfortunately in ways that could potentially undermine India’s fair dealing balance). Malaysia continues to attract significant investment from the hi-tech sector despite not yet adopting a TDM exception, in stark contrast to neighbouring Singapore. In Thailand, which has one of the richest cultural traditions in Asia through its audiovisual and music sectors, the tech sector has been agitating for introduction of a TDM, as elsewhere. This would put at risk a content sector that is a significant contributor to national GDP as well as driver of the all-important tourist industry.
Korea is another country where the AI industry is bringing pressure to bear. Korea’s unique and thriving culture is one of its national assets, along with a domestic innovation and hi-tech industry that is second to none. To allow offshore tech companies to plunder Korea’s rich cultural tradition would be a shortsighted and shameful sellout. But neither Korea, nor Thailand, nor Malaysia, India or Australia are opposed to the development of AI, and all want their share of the benefits of this emerging if not already emergent industry. All recognize that AI development requires vast amounts of content, including the kind of high-quality content produced by their respective creative sectors.
There is a proven path for the AI industry to access this rich content. It is called voluntary licensing, and it already exists within the established four corners of copyright law. Moreover, it is increasingly becoming the solution as AI developers finally come to realize (a) that it is not worth risking the viability of the company on an unpredictable lawsuit that could result in crippling damages (or as in the case of India, years of court trials) and (b) equally important, their global push to get a legislated copyright loophole through TDM provisions in national law is going nowhere. In fact, the TDM tide is receding, as the examples of Australia and Hong Kong clearly show.
As the TDM tide goes out, the voluntary licensing tide flows in, floating the boats of both the creative and hi-tech sectors. Australia hoisted the first signal, but other jurisdictions in Asia seem ready to follow.
© Hugh Stephens, 2026. All Rights Reserved.
