ICLE on AI and Copyright

IPWatchdog – ICLE’s comments to the U.S. Copyright Office on copyright issues stemming from the development of artificial intelligence were mentioned in an IPWatchdog story about the office’s request for comments. You can read full piece here.

The International Center for Law & Economics (ICLE) filed a comment noting that the training of AI models raise several “thorny copyright-law issues” that might not survive a fair use analysis. ICLE likens the situation to the fair use issues at play in the Second Circuit’s 1994 decision in American Geophysical Union v. Texaco, which found Texaco liable for copyright infringement for photocopying entire articles from scientific journals to which Texaco had subscribed. Texaco defended its use as transformative for the purpose of training its scientists, but the Second Circuit found that the copies themselves were untransformed duplications having the same intrinsic purpose as the original.

As for infringement by generative AI outputs, ICLE argued that current copyright law was capable of assessing whether an output was substantially similar to a copyrighted work or whether vicarious liability should attach to an AI developer. While creation of a federal right of publicity might not be necessary, ICLE said that it could facilitate more economic cooperation between AI companies and copyright owners.