Copyright and why it's broken. - Tom Scott

A lot of people misunderstand the purpose and implementation of copyright.

To make things even more confusing, most people only understand the US version of copyright. The US has worked really hard to get the rest if the world to align their copyright law with the US, but they’re all subtly, and sometimes not so subtly, different, even before you get to the different legal systems used to interpret and implement copyright law.

The first thing is: copyright is about the right of a human creator to control how a copy of their work is made available (publicly in some countries, any in others) for a limited time. In some places that right can be temporarily or permanently assigned or sold to someone else.

So when it comes to AI, one group argues that unless the rights holder licenses the work to be part of a training set, it’s not allowed to be part of a training set.

Another group says that it doesn’t matter; if the human creating the training set got the work legitimately, they can use it to train a model.

The models themselves do not contain any copyrighted material and so are outside the discussion.

Copyright is flexible; for music, we have different copyright rules for recording, reproducing, and performing music for personal or public consumption, with different copyright for music and lyrics and associated video.

This could also be applied to AI, with training models being a new “recipient” of copyrighted content. We could enshrine in law how this can be done legally. But so far, we haven’t, so it falls back to “is this fair use?” and “are different copyright permissions needed when a human is not consuming the work?”

The end bit, that AI created works aren’t copyrightable, is already settled. However, any work a human does to tweak or select AI generated content, if it is itself creative, is copyrightable.

So yes, copyright should exist. People need to re-learn what it actually is though, and additions may be required to the laws in order to enable AI generated art to promote valuable skills and knowledge.

Artists and scientists can make a living of their work without copyright. CC BY SA and creative commons in general doesnt prevent you from selling your work and people can support art/science without it being behind paywalls. We need to move to a culture where we don’t try to enforce everything with the threat of jail/punishments and move to a culture where we support things we love because we want the creators to be able to continue creating without worry

Two important videos from two different musicians that are highly relevant:

• Ending Copyright Could Save Art & Journalism
• The Grotesque Legacy of Music as Property

Copyright is completely broken and only benefits large corporations with the lawyers to enforce it. It is nonsensical and the constant extensions to US copyright have diluted public domain and open-source works. In fact, the constant and rampant breaking of copyright and stretching the definitions of fair use is a side effect of the public's lack of options in the public domain space.

Right now, AI-generated works aren’t copyrightable. https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/ This means you can not copyright the works produced by AI.

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So right now, common AI is producing works that are potentially copyright-infringing works and are unable to be copyrighted themselves.

This kind of judgement is pure symbolic politics, because it's completely unenforceable and I'm confused why you didn't mention it. No one can prove if a piece of art is AI made and no one has to admit it. So yes, AI art can be copyrighted, just not officially as AI art, but it certainly will be and likely already is as long as there's a human 'stand in'.

There's a huge gulf of difference between a matter of fact and a matter of law.

Upvoted because Tom Scott

I'm not a lawyer, this is my personal opinion which has no basis in legal fact. Use my words at your own peril.

Tom's video goes very nicely in-depth, and makes a good argument for why a lot of media, memeing and things in content do not fall under fair use and are considered copyright infringement in US/UK law.

A judge could just as well make a ruling that widens the understanding of fair use in copyright law as they could restrict it in favour of copyright owners. Big firms like Sony do court shop so they will try to find somewhere that would more likely rule in their favour. Just saying it might not be entirely beneficial even for companies with huge coffers to try to define where the line is for fair use through a suit.

Especially for copyrights owned by businesses that have gone under or just completely orphaned copyrighted works, I think the law should be changed such that those rights return to the original creator or the work enters the public domain. I agree with Tom in general that copyright ought to last less than 50 years, ideally 20, but big entertainment ain't gonna let that happen anytime soon.

Courts and lawyers and the whole system being so trigger-happy with lawsuits in the US just makes my head spin. It is the "land of the fee" after all, the team with big bucks often wins out nowadays.

In any case, I can't wait for next year for it to be legal to draw a "fanart" Steamboat Willie sporting a very large willy.

The way I see it AI is not replacing artists, it's expanding access. People who didn't hire an artist before, now can use an AI tool to generate something to add value to their creation (if they didn't hire it in the first place, it's not replaced anyone). And people who hired artists for originality and creativity will continue to do so. Biggest part of why someone hires an artist is the creative process and their ability to come up with the ideas.

The copyright was broken long before AI became mainstream, AI just shines a bright light on it. The only thing I'm afraid of is that whatever changes to the laws will be made will make it worse for consumers not better.

So with this information, should copyright exist, and if not, how do you encourage artists and scientists to produce works if they no longer can make a living off of it?

I can only speak in my case, but as someone who has been building a career in art and design I'm already looking for another career. It's unlikely I'll bother publishing anything I make on my own once I fully make the switch. It's simply not worth the high risk of investing so much time and energy into a refined skill only to have an individual or a company scrape all your work without even notifying or compensating you and use it to train a replacement for you, using your own hard work to make you obsolete.

It's very clear from the way the public discussion is going in general on this subject that society is going to have no real issue giving the finger to creatives over the next few decades. It's essentially society doing that thing that cheapster clients do where they try to commission art way below your rate because "You're an artist, you like making art so making it for me is like its own reward."

This is misinformation. You can copyright AI works.

The article really oversimplifies things.

In my use case, for example, I do in fact own the copyright to my own art, as a significant portion of it was created by traditional methods using AI as one more tool, not simply by telling it what to make and rolling with it.

III. The Office's Application of the Human Authorship Requirement

As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “whether the `work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” [23]

In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author's “own original mental conception, to which [the author] gave visible form.” [24]

The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25]

This is necessarily a case-by-case inquiry.

If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26]

For example, when an AI technology receives solely a prompt [27]

from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[28]

For example, if a user instructs a text-generating technology to “write a poem about copyright law in the style of William Shakespeare,” she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare's style.[29]

But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[30]

When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31]

As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]

In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” [33]

Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34]

In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.[35]

This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image,[36]

and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work's expression and “actually formed” the traditional elements of authorship.[37]