EU accused of leaving ‘devastating' copyright loophole in AI Act
The intervention came as 15 cultural organisations wrote to the European Commission this week warning that draft rules to implement the AI Act were 'taking several steps backwards' on copyright, while one writer spoke of a 'devastating' loophole.
Axel Voss, a German centre-right member of the European parliament, who played a key role in writing the EU's 2019 copyright directive, said that law was never conceived to deal with generative AI models: systems that can generate text, images or music with a simple text prompt.
Voss told the Guardian that 'a legal gap' had opened up after the conclusion of the EU's AI Act, which meant copyright was not enforceable in this area. 'What I do not understand is that we are supporting big tech instead of protecting European creative ideas and content.'
The EU's AI Act, which came into force last year, was already in the works when ChatGPT, an artificial intelligence chatbot that can generate essays, jokes and job applications, burst into public consciousness in late 2022, becoming the fastest-growing consumer application in history.
ChatGPT was developed by OpenAI, which is also behind the AI image generator Dall-E. The rapid rise of generative AI systems, which are based on vast troves of books, newspaper articles, images and songs, has caused alarm among authors, newspapers and musicians, triggering a slew of lawsuits about alleged breaches of copyright.
Voss said he had been unable to get majorities of EU lawmakers to ensure strong copyright protection when the issue emerged in the late stages of negotiating the AI Act. The absence of strong provisions on copyright was 'irresponsible' and it was 'unbelievable' that the legal gap remained, he said.
He would like to see legislation to fill that gap, but said it would take years, after the European Commission's decision last week to withdraw the proposed AI Liability Act. 'It might be getting very difficult. And so the infringement of copyright is continuing, but nobody can prove it.'
The AI Act states that tech firms must comply with 2019 copyright law, which includes an exemption for text and data mining.
Voss said this exemption from copyright law was intended to have a limited private use, rather than allow the world's largest companies to harvest vast amounts of intellectual property. The introduction of the TDM exemption in the AI Act was 'a misunderstanding', he said.
This view was reinforced by a significant academic study last year by the legal scholar Tim Dornis and the computer scientist Sebastian Stober, which concluded that the training of generative AI models on published materials could not be considered 'a case of text and data mining' but 'copyright infringement'.
Meanwhile, the TDM exemption has sent shock waves across creative professions. Nina George, a German bestselling author whose works has been translated into 37 languages, described the TDM exception as 'devastating'. Exclusions from copyright, she said, were originally intended to balance the interest of authors against those of the public, such as allowing schools to photocopy texts. 'These AI exceptions for commercial use mean that business interest will be served for the first time,' she said. 'This is a shift of paradigms [and] a perverted way to bend copyrights and authors' rights to serve the interest of a few businesses.'
George, who is president of honour at the European Writers Council, said she had no way of finding out if any of her works had been used to feed generative AI systems. 'The lack of instruments to enforce any rights, this is the scandal in the construction of the AI Act [in] relation to copyright directive.'
Aafke Romeijn, a Dutch-language electropop artist, said there was no practical way for creatives to opt out of having their work used in AI applications.
Companies are not currently obliged to report on the content used to feed generative AI models. From 2 August, tech firms will have to provide a summary of data used in AI models, but details are still being decided. Voss said the latest draft rules on the summary from the EU's AI office were 'not sufficiently detailed' to protect artists.
In a letter to the Commission this week, 15 cultural organisations said the draft summary proposals failed to ensure transparency. More generally, the organisations wrote: 'The impact of AI on the authors and performers we represent constitutes a systemic risk.'
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Romeijn, who is on the board of the European Composer and Songwriter Alliance, which co-signed the letter, said she had been told by senior EU officials to take tech companies to court to preserve her copyright. 'Who is actually going to take a big tech company to court?' she asked, citing cost, time, loss of earnings and potential damage to reputation. 'It is just a very impractical way of implementing legislation.'
The European Council of Literary Translators' Associations, which represents 10,000 translators in 28 countries, said it was very concerned about copyright and AI. 'Books are written by human authors and must be translated by human translators to preserve the artistic virtues of the literary work,' it said in response to questions. 'We firmly believe that authors, performers and creative workers must have the right to decide whether their works can be used by generative AI and, if they consent, to be fairly remunerated.'
In December, mostly the same cultural organisations wrote to the European Commission vice-president Henna Virkkunen to raise concerns that EU law 'fails to adequately protect the rights of our creative communities and the value of their cultural works'. On Monday, nearly 11 weeks later, the commission had not replied, according to three signatories.
'So far it does not seem that she [Virkkunen] has an ear or an understanding – I am sorry to say that – of the whole value chain and how it works in the cultural and creative industries,' said George.
Brando Benifei, an Italian Social Democrat who jointly represented the European parliament in negotiations on the AI Act, contested the view that creatives were unprotected. He described the AI Act as 'a very strong text' that had the potential to create 'a very large rebalancing of power between the developers and the rights holders'.
From 'day one' after the law was voted in, there had been an effort 'to dilute and to interpret in a minimalistic way the provisions', he added. '[This] has been the obsession of the big tech companies because it is probably the part of the AI act that can be most impactful in terms of costs for the big generative AI companies.'
A European Commission spokesperson said it was 'closely monitoring the global challenges that AI technology development poses to the creative industry' and was 'committed to maintaining a balanced approach that fosters innovation while protecting human creativity'.
'We are assessing the need for additional measures, outside the AI framework,' the spokesperson added, declining to say whether this meant new legislation.
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