Southern Cross University Law Lecturer and intellectual property specialist Dr Jonathan Harlen examines how the rapid rise of artificial intelligence has left Australian copyright law scrambling to keep up.
Proposed reforms, including a limited "fair use" exception for text and data mining, could put creators at risk of seeing their intellectual property absorbed into the next wave of AI systems.
Across the globe, disputes are unfolding between tech giants, publishers, and creative artists over whether copyrighted material can be used to train AI systems like ChatGPT and Midjourney. In Australia, the debate is now heating up, as policymakers consider whether to introduce a new "fair use" exception to copyright for large-scale text and data mining.
Multiple lawsuits are currently playing out in the United States, Europe and China pitting AI tech giants against publishers, media companies and creative artists.
Copyright holders are alleging that their original works have been 'scraped' (copied in bulk from websites, databases and digital platforms by automated programs) on an unprecedented scale, to be used as training materials for increasingly sophisticated AI chatbots and text-to-image generators such as ChatGPT, Claude and Midjourney.
In early September, one of the most high-profile defendants, Anthropic PBC, agreed to pay $1.5 billion to settle a class action brought by millions of book authors . The settlement followed a ruling by the US District Court for the Northern District of California that the training of Anthropic's chatbot Claude was not in itself illegal, however the pirating and storage of more than half a million original works for use in Claude's training did indeed infringe the authors' copyright .
The case was on appeal to the US Ninth Circuit when it settled. Had the District Court ruling on the pirated works been upheld, Anthropic could have been found liable for damages totalling US $75 billion, more than enough to ruin the company . As it stands, the correctness of the District Court ruling remains uncertain, since it has not been confirmed by a higher court. Other key legal issues continue to remain unresolved, such as the status of works created by AI that are substantially similar to the original works they were trained on. The legal arguments surrounding the latest generation of generative AI tools are still a long way from being resolved.
In Australia the debate over these issues heated up considerably following the release of the Productivity Commission's Interim Report on Harnessing Data and Digital Technology in August this year. The Commission indicated in the report that it is considering recommending a limited "fair use" exception to copyright, to cover text and data mining (the so-called 'TDM' exception).
