Last week, Creative Commons (CC) participated in the 45th session of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR). In this post, we briefly report on the session discussions on exceptions and limitations for cultural heritage institutions (CHIs), a topic of utmost relevance to our Open Culture Program. 

As in previous SCCR sessions, our main objective was to drive copyright reform towards better sharing of heritage materials in the interest of the public and in tune with the sharing possibilities of the digital environment. For more details check out our official statement and watch our intervention on the WIPO webcast. 

Overall, we welcome the session outcomes. However, protracted discussions on the various versions of the implementation plan for the Work Program on Limitations and Exceptions (SCCR/45/6 and SCCR/43/8 REV.), which aim to determine a clear path forward in the negotiations, meant that substantive discussions could not take place. We look forward to engaging with the future Draft Implementation Plan on the Work Program on Limitations and Exceptions (SCCR/45/10 PROV.) and to bringing our expertise on copyright in the public interest to the discussions on objectives, principles, and options.

Limitations and exceptions for CHIs were not the only issue on the Committee’s agenda. Other key items included the protection of broadcasting organizations (read Communia’s take on this topic), other exceptions and limitations such as for educational and research institutions and for people with disabilities, copyright issues in the digital environment, as well as the interplay between generative artificial Intelligence (AI) and copyright, among others. 

You can read more about the meeting outcomes in the Summary by the Chair.

We look forward to participating in the Committee’s next session to contribute to creating a fairer and more balanced international copyright system in the public interest.

The post CC at WIPO: Slow progress on copyright exceptions for cultural heritage institutions appeared first on Creative Commons.

Creative Commons (CC) has been actively engaged with EU policymakers on the AIA for the past years, especially as copyright issues arose front and center in the negotiations last June. In this blog post, we share a few high-level assessments of where the text landed across various key aspects impacting the commons as well as some thoughts on what lies ahead.

Open source software

We welcome the fact that the final text excludes open-source AI from some obligations, even if these exclusions are subject to conditions and come alongside ambiguity of the meaning of “open” in the context of AI overall and in the specific context of this law. Other noteworthy positives include an exemption for AI systems “specifically developed and put into service for the sole purpose of scientific research and development” and another exemption from the detailed transparency requirements for open-source general purpose AI (GPAI) models, even if they still have the obligation to put in place a policy to respect copyright law and produce a summary about the content used for model training.

AI and creativity

The AIA is largely agnostic when it comes to how the creative industries (and indeed individual creators) use AI. From our community consultation outcomes, we see some creators embracing AI, using it as a creative tool to further develop new and innovative works. Others, however, remain concerned about the impact of AI on employment in certain sectors as well as the competition aspect of more cost-effective digital/virtual solutions vis-a-vis human created works.

In response to Chat GPT’s explosive adoption, the EP introduced significant provisions, including on copyright. CC provided direct input to policymakers in public and in private on this aspect of the legislation, which touches directly on CC’s core mission.      

As ever with compromises there are aspects of the deal on copyright which are positive and others which will require further reflection and iteration. The AIA makes several cross-references to EU copyright legislation, in particular Articles 3 and 4 of the CDSM Directive on text and data mining. There are already some stakeholders who are pushing for revision of related EU legislation, including said Directive, in light of the AIA and recent technological developments. At CC we look forward to facilitating practical application of Articles 3 and 4. However, we caution against any fundamental revisions of the exceptions provided for in these articles. These are critical for ensuring a balanced copyright system. 

What happens next? A gradual application process

The Council is expected to give its final approval in the coming weeks and the Act will likely be published in the EU’s Official Journal later this spring. The Act will enter into force 20 days later, while the individual provisions will start applying in a staggered manner, with articles on prohibited AI applications applicable after 6 months (circa end of 2024), provisions on general purpose AI applicable after 12 months (circa mid-2025) and the remaining provisions applicable after 24 months (circa mid-2026). Looking further into the future, EU policymakers will no doubt have to assess how the AIA works in practice and ensure appropriate enforcement. 

We welcome the creation of the EU’s AI Office, which will soon have to start crafting technical rules, as mandated by the AIA. We look forward to engaging with the Office as it further develops important technical standards, in particular in developing an opt-out standard in alignment with existing copyright law. The Office will also have an important role in interpreting and further clarifying vaguely worded concepts, such as the requirement to publish “sufficiently detailed” summaries of inputs for large language models (LLMs) and foundation models. These rules will be crucial to provide clarity for firms and individuals regarding regime compliance. 

CC will continue to engage constructively with EU policymakers to ensure that the EU’s copyright regime remains fit for purpose in an ever-evolving digital age and that AI can be harnessed for good in support of a thriving commons.

The post EU adopts landmark Artificial Intelligence Act appeared first on Creative Commons.

In December last year, the Communia Association for the Public Domain — of which Creative Commons (CC) is a member —  asked the European Commission and European Parliament to consider the development of a Digital Knowledge Act. In this blog post, we offer some background on the proposal and explain why CC fully supports it. 

Rationale for a Digital Knowledge Act

European knowledge institutions (libraries, universities, schools, etc.) as well as researchers face numerous copyright challenges in the digital environment. Access to academic publications, their reproduction for research purposes, text-and-data mining, etc. are all activities that are necessary to conduct serious research but are hampered by misaligned copyright rules, especially where cross-border collaboration is key.  

As top EU institutions are gearing up for a new mandate for the next five years, a Digital Knowledge Act would enable knowledge institutions to fulfill their mission and offer the same services online as offline. Such a regulation could improve copyright law by introducing the following for the benefit of knowledge institutions: 

• a unified research exception
• an EU-wide e-lending right
• a limited liability regime for those acting in good faith
• reasonable licensing conditions
• a right to circumvent technological protection measures.

CC’s work on policy and open knowledge

CC recognizes that equitable policy which enables and promotes open access (OA) is pivotal to making knowledge open. For example, in 2022 CC, in partnership with SPARC and EIFL, launched the Open Climate Campaign, a four-year project working to make the open sharing of research the norm in climate science. At the center of this work is partnering with national governments, private funders, and environmental organizations to develop open access policies for their grantees. Another project aims to identify recommended best practices for better sharing of climate data and yet another strives to promote open licensing for life sciences preprints. Through these OA policies and best practices we believe we can change the culture of sharing and promote the adoption of open practices for knowledge to grow and help solve the greatest challenges of our times.  

Why we support this initiative

But discrete open access policies and best practices are not enough. Knowledge institutions need to be able to rely on a clear, harmonized, and supportive legal system that operates across borders. That is why CC’s policy work centers on promoting better sharing of knowledge and culture through global copyright reform. Knowledge institutions are pivotal actors in the fight against climate change and hold many of the keys to unlock knowledge. If we are going to solve the world’s biggest problems, the knowledge about them must be open, and institutions , which hold that knowledge in trust for the public, must be able to operate within a legal framework that is conducive to their core mission and purpose. A Digital Knowledge Act would provide such a structure at an EU-wide scale and would contribute to accelerating research, boosting scientific progress, and spurring knowledge-based innovation for a sustainable future. 

For additional guidance on open knowledge policy, contact us at info@creativecommons.org

The post CC Supports a new Digital Knowledge Act for Europe appeared first on Creative Commons.

“Original art by illustrator Freya C. Morgan”. Internet Archive.

Join Creative Commons, Internet Archive, and many other leaders from the open world to celebrate Public Domain Day 2024. The mouse that became Mickey will finally be free of his corporate captivity as the copyright term of the 1928 animated Disney film, Steamboat Willie, expires along with that of thousands of other cultural works on the first day of 2024.

The year 1928 brought us a host of still relevant, oft-revived and remixed culture, from H.P. Lovecraft’s classic horror story, “Call of Cthulhu” (originally published in Weird Tales; now currently a popular video game), to the Threepenny Opera, a critique of income inequality and the excesses of capitalism that is surprisingly on point for our current era.

And further, classic works of literature such as Orlando by Virginia Woolfe, Well of Loneliness by Radclyffe Hall, and Black Magic by Paul Mourad; children’s literature like House on Pooh Corner by A. A. Milne, which introduced the character Tigger, and Millions of Cats by Wanda Gág; movies like Charlie Chaplin’s The Circus, and Buster Keaton’s The Cameraman; and music like Dorothy Field’s “I Can’t Give You Anything But Love, Baby” and Cole Porter’s “Let’s Do It, Let’s Fall in Love” will grow the rich set of materials that are freely available to all of us as part of the public domain.

Join us for a virtual celebration at 10am PT / 1pm ET on 25 January, 2024, with an amazing lineup of academics, librarians, musicians, artists and advocates coming together to help illuminate the significance of this new class of works entering the public domain!

Of course our program wouldn’t be complete without a discussion of Generative AI, which to some has become a new kind of Eldritch God unleashed upon humanity—a Chtulhu of sorts—out to alter or control human reality. New AI technologies have raised all kinds of questions about human creativity, and the various monsters we must vanquish in order to preserve it. We’ll get into all that and more in our panel discussion of AI, Creativity and the Public Domain.

REGISTER NOW

This event is co-hosted by Internet Archive, Creative Commons, Authors Alliance, Public Knowledge, Library Futures, SPARC and the Duke Center for the Study of the Public Domain.

The post Celebrate Public Domain Day 2024 with us: Weird Tales from the Public Domain appeared first on Creative Commons.

As in previous sessions, our main objective was to drive copyright reform towards better sharing of copyright content in the public interest and in tune with the sharing possibilities of the digital environment. In this short session, we addressed the proposed broadcasting treaty and exceptions and limitations in our opening statement, as reported in the​​ “Statements” information document (SCCR/44/INF/STATEMENTS).

We also offered views on exceptions and limitations for cultural heritage institutions, i.e. libraries, archives and museums; you can watch our intervention on the WIPO webcast. These views are in line with our Open Culture Program’s recently launched initiative Towards a Recommendation on Open Culture (TAROC) which aims to develop policy to recognize the role of open culture to reach wider policy goals notably in relation to copyright and access and use of cultural heritage — see our TAROC Two-Pager in English, Shqip, français, Español, 日本語, Türkçe, italiano, عربي.

Overall, we are rather satisfied with the session’s outcomes. On broadcasting, we remain concerned that discussions on the draft broadcasting treaty are being maintained on the agenda despite evidence of a clear stalemate in the discussions; we are nonetheless heartened by the acknowledged need to work towards a balanced approach on exceptions and limitations in the draft treaty.

On exceptions and limitations, we are pleased that the SCCR Secretariat has undertaken to prepare a detailed implementation plan for the Work Program on Exceptions and Limitations; in CC’s views, this plan should provide for open and transparent engagement opportunities and wide participation from civil society of which CC is a leading voice. It should notably allow for real progress on substantive issues to support meaningful access and use of cultural heritage for preservation and other legitimate purposes.

We also welcome the organization of a virtual panel discussion on cross-border uses of copyright works in the educational and research sectors open to all member states as well as observers. As an accredited observer, CC places high value on broad and inclusive participation to ensure balanced and diverse perspectives can be brought to the table for a constructive debate. We recall that licensing falls short of addressing the problems that libraries, museums, archives, educational and research institutions, as well as persons with disabilities, face on a daily basis. Licensing is not a substitute for robust, flexible, mandatory exceptions and limitations to empower those who teach, learn and research, those who share in and build upon cultural heritage, and people with disabilities.

We note Group B’s Proposal Information Session on Generative AI and Copyright (SCCR/44/8) and look forward to the Secretariat organizing an open, inclusive, and balanced session at the next SCCR under the item of Copyright in the Digital Environment. As we have stated at the WIPO Conversation on Generative AI and Intellectual Property last September, generative AI raises important issues and is having an enormous impact on creativity, the commons, and better sharing, i.e., sharing that is inclusive, equitable, reciprocal, and sustainable. Our consultations on the matter have revealed a wide variety of views among creators, AI developers, and other stakeholders in the commons. They have also shed light on the fact that copyright is but one lens through which to consider generative AI; what is more, it is a rather blunt tool that often leads to black-and-white solutions that fall short of harnessing all the diverse possibilities that generative AI offers for human creativity. Our interventions on copyright and generative AI in the United States and the European Union contexts attest to those nuanced views. We thus call on the Secretariat to ensure the session will offer a balanced and representative set of perspectives.

We look forward to participating in the Committee’s next session, to take place from April 15 to 19, 2024, and to bring our expertise on copyright, better sharing of cultural heritage, and generative AI in order to help create a fairer and more balanced international copyright system in the public interest.

→ To stay informed about our policy and open culture work:

• Visit our blog for regular updates on our work on AI
• Sign up for our open culture mailing list
• Join the open culture platform
• Join the copyright platform
• Visit our website on open culture

Sign up for our Open Culture Matters newsletter >

The post CC’s Key Insights from WIPO’s Meeting on Copyright appeared first on Creative Commons.

Since our founding, we have sought out ways that new technologies can serve the public good, and we believe that generative AI can be a powerful tool to enhance human creativity and to benefit the commons. At the same time, we also recognize that it carries with it the risk of bringing about significant harm. We used this opportunity to explain to the Copyright Office why we believe that the proper application of copyright law can guide the development and use of generative AI in ways that serve the public and to highlight what we have learned from our community through the consultations we have held throughout 2023 and at our recent Global Summit about both the risks and opportunities that generative AI holds.

In this post we summarize the key point of our submission, namely:

• AI training generally constitutes fair use
• Copyright should protect AI outputs with significant human creative input
• The substantial standard similarity should apply to Infringement by AI outputs
• Creators should be able to express their preferences
• Copyright cannot solve everything related to generative AI

AI training generally constitutes fair use

We believe that, in general, training generative AI constitutes fair use under current U.S. law. Using creative works to train generative AI fits with the long line of cases that has found that non-consumptive, technological uses of creative works in ways that are unrelated to the expressive content of those works are transformative fair uses, such as Authors Guild v. Google and Kelly v. Arriba Soft. Moreover, the most recent Supreme Court ruling on fair use, Andy Warhol Foundation v. Goldsmith, supports this conclusion. As we commented upon the decision’s release, the Warhol case focus on the specific way a follow-on use compares with the original use of a work indicates that training generative AI on creative works is transformative and should be fair use. This is because the use of copyrighted works for AI training has a fundamentally different purpose from the original aesthetic purposes of those works.

Copyright protection for AI outputs subject to significant human creative input

We believe that creative works produced with the assistance of generative AI tools should only be eligible for protection where they contain a significant enough degree of human creative input to justify protection, just like when creators use any other mechanical tools in the production of their works. The Supreme Court considered the relationship between artists and their tools vis-a-vis copyright over 100 years ago in Burrow-Giles v. Sarony, holding that copyright protects the creativity that human artists’ incorporate into their works, not the work of machines. While determining which parts of a work are authored by a human when using generative AI will not always be clear, this issue is not fundamentally different from any other situation where we have to determine the authorship of individual parts of works that are created without AI assistance.

Additionally, we believe that developers of generative AI tools should not receive copyright protection over the outputs of those tools. Copyright law already provides enough incentives to encourage development of these tools by protecting code, and extending protection to their outputs is unnecessary to encourage innovation and investment in this space.

Infringement should be determined using the substantial similarity test

We believe that the substantial similarity standard that already exists in copyright law is sufficient to address where AI outputs infringe on other works. The debate about how copyright should apply to generative AI has often been cast in all-or-nothing terms — does something infringe on pre-existing copyrights or not? The answer to this question is certainly that generative AI can infringe on other works, but just as easily it may not. As with any other question about the substantial similarity between two works, these issues will be highly fact specific, and we cannot automatically say whether works produced by generative AI tools infringe or not.

Creators should be able to express their preferences

In general, we believe there is value in methods that enable individuals to to signal their preferences for how their works are shared in the context of generative AI. In our community consultations, we heard general support for preference signals, but there was no consensus in how best to do this. Opt-ins and opt-outs may be one way, but we do not believe they need to be required by US copyright law; instead, we would like to see voluntary schemes, similar to approaches to web scraping, which allow for standardized expression of these preferences without creating strict barriers to usage in cases where it may be appropriate.

Transparency is necessary to build trust — Copyright is only one lens through which to consider AI regulation

We urge caution and flexibility in any approach to regulating generative AI through copyright. We believe that copyright policy can guide the development of generative AI in ways that benefit all, but that overregulation or inappropriate regulation can hurt both the technology and the public. For example, measures that improve transparency into AI models can build trust in AI models by allowing outside observers to “look under the hood” to investigate how they work. But these measures should not be rooted in copyright law. Copyright is just one lens through which we can view generative AI, and it is ill equipped to deal with many of the social harms that concern us and many others. Attempting to use copyright to solve all of these issues may have unintended consequences and ultimately do more harm than good.

We are happy to see the Copyright Office seeking out guidance on these many difficult questions. We will have to wait to see what comes from this, but we will hope for the best, and continue to engage our community so we can more fully understand what role generative AI should play in building the commons and serving the public good.

Read CC’s full submission to the Copyright Office >

The post CC Responds to the United States Copyright Office Notice of Inquiry on Copyright and Artificial Intelligence appeared first on Creative Commons.

“This modified screen capture of video from WIPO Conversation on Intellectual Property (IP) and Frontier Technologies Eighth Session” by WIPO is licensed via CC BY 4.0.

Today Creative Commons (CC) delivered a statement to the World Intellectual Property Organization (WIPO) Conversation on Generative AI and Intellectual Property, as part of our engagement in global policy discussions around the important issues raised by these new technologies and their impact on creativity, the commons, and better sharing, i.e. sharing that is inclusive, equitable, reciprocal, and sustainable. In this blog post, we share the statement as delivered by Brigitte Vézina, CC’s Director of Policy and Open Culture.

Watch the video of CC’s remarks >

Thank you Chair for giving me the floor on behalf of Creative Commons, the organization behind the eponymous copyright licenses that have released more than 2,5 billion works into the commons to date.

At CC we know generative AI, without proper guardrails, runs the risk of being exploitative and damaging the commons, yet it also has the potential to enhance it like never before. This conundrum leaves us with many hard questions:

• How can creators be fairly rewarded for building our shared commons?
• How can we support the new forms of creativity enabled by AI?
• How do we support creators through these unprecedented technological developments?

In search of answers we held community consultations over the past months (including a symposium in New York City last week). As one would expect, we garnered a wide variety of views:

• Some creators are very concerned about AI and perceive it as a serious threat to their livelihood — at the same time many artists are relishing the new possibilities offered by AI as it pushes the boundaries of human creative expression and can make creativity more equitably accessible, for example, for people with disabilities. We just published an open letter from over 70 artists* who use generative AI to help surface their experiences and views.
• Some developers want unbridled freedom to build their model — but some are looking forward to working with opt-outs, i.e. respecting the wishes of creators who do not want to have their content trained upon, or to train on openly licensed content. We are already seeing efforts to help creators signal their preferences and norms and standards are emerging through community practice and portend fresh and innovative approaches.

In this context, WIPO should help develop norms and practices that are flexible and that will work to increase transparency and empower creators with choices that reflect their values and aspirations. WIPO should approach this with fairness and sustainability in mind — instead of promoting an expansion of copyright, it should ascertain its intrinsic balance and promote the commons on which all creativity depends. In particular, since all creativity builds on the past, copyright needs to continue to leave room for people to study, analyze and learn from previous works to create new ones, including by analyzing past works using automated means.

Mr. Chair, copyright is only one lens through which to consider generative AI. Copyright is a rather blunt tool that often leads to black-and-white solutions that fall short of harnessing all the diverse possibilities that generative AI offers for human creativity. Copyright is not a social safety net, an ethical framework, or a community governance mechanism — and yet we know that regulating generative AI needs to account for these important considerations if we want to support our large community of creators who want to contribute to enriching a commons that truly reflects the world’s diversity of creative expressions.

Thank you, Mr. Chair and to WIPO for hosting this important conversation.

Subscribe to CC’s email newsletter to stay informed about all our work with AI, culture and creativity, and more, and continue the discussion on AI and the commons at the CC Global Summit during 3–6 Oct 2023 in Mexico City.

* The Open Letter: Artists Using Generative AI Demand Seat at Table from US Congress is currently signed by over 180 artists and continues to add more.

The post CC Defends Better Sharing and the Commons in WIPO Conversation on Generative AI appeared first on Creative Commons.

“EU Pixelated” by Creative Commons was cropped from an image generated by the DALL-E 2 AI platform with the text prompt “pixel art of computer code streaming across an EU flag.” CC dedicates any rights it holds to the image to the public domain via CC0.

As a part of CC’s continuing engagement in policy to shape generative artificial intelligence (AI), Brigitte Vézina, our Director of Policy and Open Culture, participated in a June session hosted by the European Internet Forum: Generative AI, Art & copyright: from creative machines to human-powered tools. The panel was held in the framework of EU negotiations on the development of the Artificial Intelligence Act, one of the world’s first regulations dedicated to AI.

The panel was chaired by MEP Dragos Tudorache, Rapporteur on the AI Act, and brought together speakers representing rightholders in the creative industries, an AI developer, and CC as the only representative of civil society present to defend the public interest. The debate touched on several copyright-related issues related to AI training, transparency and safeguards, AI-generated outputs, and more.

In our panel remarks, we emphasized how, for many years, we have been examining the interplay between copyright and AI — exploring ways in which these technologies and practices could help people build on and contribute to the commons, stimulate new creativity, and foster better sharing, i.e. sharing that is inclusive, equitable, reciprocal and sustainable.

Going forward, it is clear that a diverse, global community must be involved in guiding the regulation of generative AI, with expertise spanning the fields of copyright, certainly, but also ethics, privacy and data protection, and fundamental human rights, so that AI’s promises are fulfilled and its perils, averted.

CC will continue our work to represent the public interest in negotiations around AI policy, as well as continue to engage and grow our broad, global community to refine and share understanding of AI’s impact on the commons. Join us at our Global Summit in Mexico City during 3–6 October 2023 where our theme is AI & the Commons.

The post CC Joins Key AI Panel in Brussels appeared first on Creative Commons.

In a rare move, the EP, European Commission, and European Council agreed to start three-way negotiations — the so-called trilogues — immediately after the vote at 9pm CET today. This need for speed underscores the political imperative of reaching a deal before next year’s EP elections on the high-stakes, hot-button draft AI Act, which is the regulation that will set the rules around AI in the EU space. In fact, the Act is bound to shape how policymakers approach regulating AI in many other jurisdictions and at the international level.

Creative Commons (CC) has actively engaged in the AI Act process (see here and here) and welcomes the EU’s leadership on defining a regulatory framework around this impactful technology. In this blog post, we highlight the issues most likely to impact the topics we focus on: growing the commons and better sharing of knowledge and culture.

Background and key issues for CC

The AI Act process started in 2021 with a proposal by the Commission and has since been debated in Parliament and Council, whose approaches will need to converge in order for an agreement to be reached and the Act adopted.

In its initial conception, the Act focused on regulating certain uses of AI. In particular, it seeks to ban certain uses of AI, such as broad-based real-time biometric identification for law enforcement in public places. It also seeks to ensure that certain precautions are taken before deployment of uses deemed “high-risk,” such as the use of AI for access to education, employment, financial credit, or other essential services.

However, in the last year, the focus expanded. The Council incorporated provisions with respect to “general purpose AI” (GPAI), and the Parliament subsequently created requirements specifically for “foundation models.” Rather than addressing specific high-risk uses, these provisions impact technologies that have a wide range of uses, both potentially beneficial and harmful, and of varying degrees of risk. Moreover, the Parliament added specific requirements for generative AI, including requirements related to transparency of copyright works used to train these models.

At CC, we support the overall aims of the draft legislation, but we want to ensure that these new points of focus are handled in a careful, narrowly-tailored way. Specifically, here is what we will be focusing on as we engage policymakers going forward.

CC comments on specific issues

For many years, CC has focused on the interplay between copyright and AI, because of the way this technology can foster better sharing, helping people build on and contribute to the commons, spurring on new creativity and knowledge sharing. The Act poses several challenges to these aims, and we address them in turn below.

Free and open source software (FOSS)

FOSS provides important benefits, including by improving transparency and auditability of AI systems and by making it easier for a wide variety of players, including nonprofits, start-ups, researchers/academics and SMEs, to innovate, test and compete in the market. As such, CC’s views are that collaborative development of FOSS and merely making FOSS available in public repositories should not subject developers to the AI Act’s requirements.

GPAI, foundation models, and FOSS

We appreciate the concerns policymakers have about how general purpose tools can be used “downstream” by other actors in harmful ways. It is particularly important that downstream users have sufficient information about the underlying model in order to address possible risks.

At the same time, it is important to treat general purpose tools distinctly from tools aimed for a particular, high-risk use. For multi-purpose tools, it can be impractical for developers to implement risk management in ways suited for narrowly defined, “high risk” AI uses. In turn, imposing the same rules on GPAI creators may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators. With that in mind, we also want to ensure there are proportional requirements for FOSS “foundation models” that are “put on the market” or “put into service,” tailored to different services and providers.

In particular, we have concerns when it comes to FOSS developers. As above, merely developing and making available in a repository a FOSS “foundation model” or other general purpose tool should not subject developers to the Act’s requirements.

Transparency of training data and copyright

At CC, we are convinced that greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems.

The Parliament version of the text includes specific provisions with respect to generative AI models, requiring providers to “document and make publicly available a sufficiently detailed summary of the use of training data protected under copyright law.” On the one hand, this can be a sensible way to ensure transparency, particularly for rightsholders who wish to exercise their right to “opt-out” of exceptions to copyright pertaining to AI training pursuant to Article 4 of the EU Copyright Directive in the Digital Single Market. On the other hand, it is important that this requirement is applied proportionately; developers should not be expected to literally list out every item in the training data, but rather provide useful summaries, such as use of a particular dataset like Common Crawl or LAOIN-5B, which rightsholders can then use to determine whether their works were used or not.

Generative AI and copyright generally

The Parliament’s text also requires that generative AI model providers take “adequate safeguards against the generation of content in breach of Union law, in line with the generally acknowledged state of the art, and without prejudice to fundamental rights, including the freedom of expression.” While perhaps to reaffirm that developers should comply with copyright law, this is likely to create much more uncertainty; at worst, it could be read to suggest a more sweeping requirement for developers to implement copyright filtering tools that could address perfectly lawful uses. We encourage policymakers to take steps to ensure this does not become a backdoor expansion of copyright law; to the extent policymakers want to consider this broader topic, they should do it separately, rather than tacked on to the AI Act at the eleventh hour.

Looking ahead

Regarding the start of the trilogues, Creative Commons CEO Catherine Stihler said: “Creative Commons remains committed to finding fair and lasting solutions to ensure AI can support creators and grow the commons, in line with our strategy of better sharing and our values of openness, transparency, fairness, and creativity. At CC, we will continue to proactively engage with EU institutions as the trilogues commence, in order to achieve our mission to empower individuals and communities around the world by equipping them with technical, legal and policy solutions to enable sharing of knowledge and culture in the public interest.”

If you are in Brussels on 28 June, 2023, do not miss Creative Commons’ Brigitte Vézina speaking at the European Internet Forum’s Generative AI, art & copyright: from creative machines to human-powered tools event, an in-person panel organized by EIF with opening remarks by MEP Dragos Tudorache, Parliament co-rapporteur on the AI Act — you can find more information on the program and register on the EIF’s website.

The post European Parliament Gives Green Light to AI Act, Moving EU Toward Finalizing the World’s Leading Regulation of AI appeared first on Creative Commons.

“Orange Prince” by Andy Warhol.

The United States Supreme Court released its opinion today in Andy Warhol Foundation v. Goldsmith. While it’s hard to predict the full ramifications of this decision at this point, our initial opinion is that this decision is not ideal, but also not the death knell for transformative fair use that many feared it could have been. We address three points below.

What use is fair?

First, the Court’s focus on Warhol’s specific “use” of Lynn Goldsmith’s photograph of Prince provides clarification on what the word “use” means as part of the fair use analysis, and narrows the scope of the opinion in ways that will allow for many future fair uses.

Fair use analysis in the United States depends on a four-factor test, where courts must consider all four factors and decide how to balance each one. The Goldsmith case focuses entirely on factor 1: the “purpose and character of the use.” (In particular, it was argued that Warhol’s Orange Prince was a “transformative” use: where the original work served one function, but has a different purpose and character because it has been “transformed” by changing the context of the use.) The copyright statute does not specify what “use” means in this context, and indeed there are many different ways to interpret it. For example, in this case, “use” could mean:

• Andy Warhol’s use of Lynn Goldsmith’s photograph of Prince Rogers Nelson to create a series of silk screen prints called The Prince Series;
• Warhol’s use of the photograph to create Orange Prince without it ever appearing on a magazine cover;
• The use of Orange Prince as a portrait of Prince for a magazine cover/profile piece.

Here, the Court narrowly focuses on this third meaning: The commercial “use” of Orange Prince as a published magazine portrait of Prince. The Court found the “purpose” of these two images of Prince to be identical: Both featured in magazines as portraits of the same musician. This narrow similarity will enable later would-be transformative users to distinguish their use from the original in a way that makes it different from the fact pattern in this case, suggesting that the fair use analysis of this factor would be different. That is, if a use does not serve the exact same function as the original, then this decision leaves the door open to argue that it has a different “purpose” from the original. The decision’s distinctions between these different kinds of uses suggest that a case over this very same work used for another purpose might have had a different outcome.

Additionally, the Court’s particular focus on the commerciality of this use is not ideal. While commercial purpose is part of the analysis of this factor, it is common for commercial uses to still be fair uses. As the Court itself notes, Campbell v. Acuff-Rose (perhaps the most famous fair use case) found an explicitly commercial use to be fair, and was clear about commercial use not barring a finding of fair use. We hope that this case is not read to walk back those statements, harming users who want to make transformative commercial uses of a work.

Derivative v. transformative

Second, the Court’s attempt to draw a line between a derivative work and a fair use does not provide much clarity to guide future uses.

Much of the confusion over distinguishing a derivative work and a fair use involves what it means to “transform” a work, and the degree of that transformation. Under U.S. law, one of the rights that authors have over their works is the right to create or authorize the creation of “derivative works.” As defined by statute, a derivative work is “a work based upon one or more preexisting works” that is “recast, transformed or adapted.” (emphasis added). At the same time, however, since Campbell, one of the most important parts of the fair use analysis has been whether a secondary work is “transformative.” Because of this, there is a tension between what is a transformation in the context of a derivative work and what is a transformative fair use. (This is often one of the most difficult points for users of CC-licensed works to navigate, as well, especially where the license is one that places conditions upon derivative works.)

Unfortunately, the Court does not successfully relieve this tension. While we agree with the Court that “overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works” and that “the degree of transformation required to make ‘transformative’ use of an original must go beyond that required to qualify as a derivative,” the decision does not provide clear guidance on what this actually means.

Fair use: An engine of creativity

Third, as Justice Kagan writes in a dissent joined by Chief Justice Roberts, the majority seems to undervalue the importance of transformation in the fair use inquiry, and indeed, may undervalue fair use more broadly. Justice Kagan writes: “Why do we have ‘fair use’ anyway? The majority responds that while copyrights encourage the making of creative works, fair use promotes their ‘public availability.’ … But that description sells fair use far short. Beyond promoting ‘availability,’ fair use itself advances creativity and artistic progress.” Moreover, “when a transformation of the original work has occurred, the user of the work has made the kind of creative contribution that copyright law has as its object.” By failing to focus on how Warhol’s piece transformed the original photograph and added a new meaning and message to the original, the Court’s opinion may influence future decisions to also undervalue this point and undermine the purpose of fair use itself.

Ultimately, this decision is disappointing to champions of fair use, but does not appear to change much about judgments on fair use from what we’ve seen before. Transformative fair use has always been difficult to rely on, with the possibility of a court’s judgment differing from the artist’s as to when a fair use was made. It is promising to note how much of what we believe to be fair use the Court also holds up as examples to distinguish — Warhol’s own soup cans, for example, which don’t occupy the same place in the market as the product on supermarket shelves. Moreover, the Court’s narrow focus on a single, very specific, use — the commercial use of one portrait to serve as another portrait — continues to leave a lot of room for more easily distinguished transformative uses like remixes and other forms of appropriation art.

“Campbell’s Soup Cans” by Andy Warhol.

CC continues to believe that fair use is essential to creativity and culture. Justice Kagan’s dissent aligns well with CC’s views on transformation and creativity; in particular, that “artists don’t create all on their own; they cannot do what they do without borrowing from or otherwise making use of the work of others.” All art incorporates and transforms what came before it, and depends on the ability to reuse and reinterpret previous works, and the exclusivity of copyright should block that only as far as necessary to support an environment where artists can continue to create. This was a case with a particularly challenging set of facts, where there was a great deal of similarity to consider in the fair use analysis, and we believe that even after this decision, fair use continues to be alive and well in the United States, and that the Court’s narrow decision changes little about that.

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