Weekly take: OpenAI must be denied free rein over copyright-protected works
Managing IP is part of the Delinian Group, Delinian Limited, 4 Bouverie Street, London, EC4Y 8AX, Registered in England & Wales, Company number 00954730
Copyright © Delinian Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Weekly take: OpenAI must be denied free rein over copyright-protected works

Open AI.jpg

It’s unfair to expect artists and authors to give up their rights when tech companies won’t make any concessions when others use their creations

I have never been a fan of big tech companies.

I often prefer using browsers that offer more privacy to users over Google. If work and family didn’t demand it, I’d like to spend my life at an off-grid farm far away from WhatsApp and social media.

One of the reasons I’m not a fan of big tech companies is that they tend to put profitability over everything else, sometimes including user safety and privacy.

I understand that businesses need to be profitable. But in an ideal world, one would hope these companies would go about earning profits in a way that didn't undermine the rights of communities.

For instance, let’s consider OpenAI’s submission before a committee at the House of Lords (the upper house of the UK parliament) earlier this month.

OpenAI said it would be impossible to train its artificial intelligence (AI) models without access to copyright-protected material.

Open AI made that submission in response to the Communications and Digital Select Committee’s inquiry into large language models (LLMs) – a type of AI algorithm that uses deep learning techniques and large data sets to generate new content.

LLMs are what power popular generative AI tools like ChatGPT and Google Bard.

OpenAI’s submission seems to suggest that it should be able to use copyrighted material to train its models unless rights owners specifically opt out because voluntarily securing a licence for every work on the internet is simply not viable.

However, several AI models out there use fully licensed material, including tools created by large companies like Getty Images and Nvidia.

So, what’s stopping OpenAI from taking an opt-in approach rather than forcing copyright owners to opt-out every time their works are used?

I, like many others, suspect it’s simply a question of scale and profitability. OpenAI can’t be as profitable unless it has free access to copyright-protected material.

Faulty arguments

OpenAI’s argument, according to its submission to the committee, is that: “Limiting training data to public domain books and drawings created more than a century ago might yield an interesting experiment, but would not provide AI systems that meet the needs of today's citizens.”

Throughout its submission to the committee and in previous court documents defending copyright lawsuits filed against it, OpenAI has maintained that “copyright law does not forbid training”.

I’ll let the courts decide the viability of that argument.

What OpenAI seems to be betting on is a possible legal loophole that would allow it to appropriate the work of copyright owners.

This includes individual authors, artists, and other creators.

It’s worth highlighting that many of those creators have received inadequate compensation for their protected works and are far from being as profitable as big tech companies.

I’m not sure how OpenAI has the cheek to argue that it should be able to use copyrighted works for free unless the owner opts out, especially when you consider that tech companies would be unlikely to allow others to use their proprietary technology without a licence.

A report published by Massachusetts Institute of Technology in December 2023 showed that every new entrant, startup, and research company is dependent on the computing structures of big tech companies such as Amazon, Microsoft, and Google to train their systems.

All of those major companies charge a licensing fee before allowing such use.

Indeed, tech companies have insisted for years that those who want to use their inventions must compensate them.

Take standard-essential patent owners, for example. They won’t allow implementers to use their technology for free just because the needs of citizens will be met.

Why should artists and writers be expected to make that concession to OpenAI when the company, despite what it may claim to the contrary, is primarily driven by profits rather than working towards the greater good?

Also, with Microsoft reportedly being its largest investor, one would assume that OpenAI can afford to secure the rights to swathes of copyright-protected work.

Poor efforts

OpenAI attempted to dilute some of the controversies around using copyrighted material to train its tools by introducing an opt-out mechanism for creators a few months back.

But some users have found that the opt-out procedure was “so onerous that it nearly seems as though it was created specifically to fail”.

Wouldn’t it have been fairer for OpenAI to provide an opt-in method for rights owners instead?

But that would make life difficult for the company, which seemingly wants to shift the burden onto the creators.

OpenAI’s actions seem to suggest that it’s okay to use someone else’s IP without authorisation until the user asks the infringer to stop such use.

Even then, the rights owner would not be compensated for the past infringement of their rights.

When large technology companies cry foul over others using their technology without a licence, regardless of how essential that technology might be to users, it’s unfair to expect artists and authors to give any leeway to profitmaking entities.

I sincerely hope that legislators and courts will see through OpenAI’s argument that allowing the use of copyright-protected works for AI training is for the greater good.

Otherwise, the ones who suffer the most will be those who have already been compensated inadequately for their contribution to the creative economy.

Meanwhile, the tech giants will get richer.

more from across site and ros bottom lb

More from across our site

Former Jenner & Block litigators say they plan to capitalise on a ‘huge uptick’ in life sciences work after joining Fish & Richardson’s newly formed life sciences industry team
Pravin Anand and Vaishali Mittal of Anand & Anand explain how they helped Swiss pharma company Vifor secure a landmark win against generic companies in India
Malisheia Douglas, who spent six years at Eaton Corporation, said she was attracted by the firm's global footprint
The European Parliament has voted in favour of overhauling the SEP framework, a proposal that has sparked deep division among patent owners and implementers
Daniel Poh talks about his journey to becoming managing partner and how firms can win new business from Chinese companies
Missing a deadline can have serious consequences but law firms should consider being lenient to those responsible
Each week Managing IP speaks to a different IP practitioner about their life and career
CMS, which was told to respond to a cancellation action by February 12 but filed its response a day later, has rowed back on claims about an IT error
The deal could help Rouse gain a foothold in Australia and New Zealand for the first time
With a team of more than 80 patent lawyers and attorneys across 21 European offices, the firm is acting in some of the most high-profile UPC cases
Gift this article