THIS WEEK IN CULTURE + THE CULTURE BUSINESS
News Briefing: Donald Trump’s AI Action Plan
As the UK government undertakes its big consultation on copyright and AI, in the US both the creative industries and the tech sector have been making submissions to inform an AI Action Plan that Donald Trump commissioned shortly after returning to the White House.
Although that action plan will deal with all the challenges and opportunities posed by AI, the copyright obligations of AI companies – and the impact of AI on the creative industries – are still a big part of the conversation.
In this TW News Briefing we look at what both sides in the copyright and AI debate are saying, and explain why this action plan could prove to be so important.
THE AI ACTION PLAN
Shortly after returning to the White House in January, Donald Trump issued an executive order setting out the new President’s top level objectives regarding artificial intelligence.
The order stated that: “It is the policy of the United States to sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness and national security”. He then told his officials to put together an action plan to achieve those objectives.
The following month Lynne Parker, Principal Deputy Director at the US Office Of Science And Technology Policy, invited interested parties to submit proposals for what the action plan should say. The deadline for submissions was 15 Mar.
Although the action plan will consider all aspects of AI, it has put the spotlight back on the copyright obligations of AI companies, and how AI impacts on the creative industries.
Not least because the big AI companies have urged Trump’s administration to embrace their interpretation of US copyright law: that AI companies can make use of existing text, images, audio, video and music without getting permission from creators or copyright owners.
That is a position strongly opposed by the copyright and creative industries.
THE DEBATE SO FAR
Generative AI – AI models that can generate content – pose a number of important copyright questions.
The big one relates to the training of these models. That training usually involves copying large quantities of existing content onto a server so that the model can analyse and learn from that content.
Copyright law gives copyright owners control over the copying of their works. Which means when third parties want to copy someone else’s works they have to get permission from the copyright owner. That gives the copyright owner the option to either decline permission or negotiate a licensing deal and make some money.
Therefore, the copyright and creative industries argue, if AI companies want to use existing content to train their models, they should first get licences from the relevant copyright owners.
However, there are certain scenarios where third parties can use copyright protected works without getting permission. In most countries there’s a specific list of copyright exceptions, scenarios where permission is not required.
In some countries that includes a text and data mining exception which many tech companies argue applies to AI training.
Instead of specific copyright exceptions, US copyright law has the concept of fair use. If the use of copyright protected works is fair use, permission is not required. As a general rule, if something is covered by a copyright exception in Europe, it is fair use under US law.
Many AI companies argue that AI training is fair use. The copyright and creative industries disagree.
LAWSUITS + LOBBYING
Numerous lawsuits have been filed in the US against AI companies that have trained models with copyright protected works without getting permission. Those companies all claim that that training was fair use. Which means these lawsuits will test the fair use argument in court.
However, it will take years for these cases to go through all the motions, because whichever side loses at first instance will inevitably appeal, with the key cases likely to be taken all the way to the Supreme Court.
So both the AI companies, and the copyright and creative industries, would like governments and lawmakers to clarify things sooner. And they have both been lobbying governments and lawmakers seeking that clarity.
The US Copyright Office, which oversees copyright matters in the US, launched its own consultation on AI in 2023 and has published two reports based on that work. However, its report on whether AI training is fair use is yet to be published.
You sense that the big AI companies hope that a Trump administration is more likely to declare AI training fair use than the previous administration, and therefore see the action plan as an opportunity to progress things more rapidly to their advantage.
If they succeed, that would have a big impact on creators and the creative industries in the US, and could influence how governments in other countries deal with the questions around copyright and AI.
OPENAI’S SUBMISSION
One submission to the action plan consultation was particularly noteworthy – the one from ChatGPT owner OpenAI.
Partly because it set out in clear terms the AI sector’s argument that AI training is fair use. And partly because it was clearly written to appeal to Trump and his top team, insisting that its proposals would enable the US to take on China, while protecting American “national security” and standing up for American “freedoms”.
Turning to copyright matters, it stated that the fair use doctrine in US copyright law “protects the transformative uses of existing works”, meaning that if the use of existing copyright protected works is a transformative use, permission from the relevant copyright owners is not required.
That is true, but the copyright and creative industries would argue that the US courts have interpreted transformative use in a pretty narrow way, meaning it does not apply to AI training.
OpenAI does not agree. Its models, it wrote, “are trained to not replicate works for consumption by the public. Instead, they learn from the works and extract patterns, linguistic structures, and contextual insights”.
“This means our AI model training aligns with the core objectives of copyright and the fair use doctrine, using existing works to create something wholly new and different without eroding the commercial value of those existing works”.
It remains to be seen if the courts agree with that argument.
We do already have one ruling involving an AI company and the fair use defence, in a lawsuit filed by news and information provider Thomson Reuters. In that case, the judge concluded that the AI company’s use of legal reports published by a Thomson Reuters subsidiary was NOT fair use.
The dispute centred on an AI-powered search engine rather than a generative AI model, but the copyright and creative industries nevertheless hope that that first ruling is a good sign that their key argument – that AI training is not fair use – will prevail in court.
Perhaps anticipating that possible outcome, OpenAI’s submission said that President Trump should be ready to “weigh in where fundamental, pro-innovation principles are at risk”. Which likely means it wants Trump’s administration to intervene if and when the courts started siding with the copyright owners on the fair use debate.
THE ENTERTAINMENT INDUSTRY RESPONDS
The US entertainment industry made its own submissions to action plan consultation, including an open letter signed by hundreds of actors, directors, writers, designers and musicians, and people working in the film, TV and music industries.
Among the signatories to the open letter were Ben Stiller, Mark Ruffalo, Paul McCartney, Phoebe Waller-Bridge, Bette Midler, Cate Blanchett, Paul Simon, Ron Howard, Sam Mendes, Chris Rock and Janelle Monáe.
Referencing OpenAI’s submission, as well as that made by Google, they wrote: “It is clear that Google (valued at $2 trillion) and OpenAI (valued at over $157 billion) are arguing for a special government exemption so they can freely exploit America’s creative and knowledge industries, despite their substantial revenues and available funds”.
“There is no reason to weaken or eliminate the copyright protections that have helped America flourish”, they went on. Because, they added, AI companies have plentiful access to copyright protected works, they just need to secure licences from the relevant copyright owners, “just as every other industry does”.
“Access to America’s creative catalogue of films, writing, video content and music is not a matter of national security”, they then went on, insisting that the AI companies “do not require a government-mandated exemption from existing US copyright law”.
Elsewhere, the letter reminded the Trump administration that the arts and entertainment industry in the US “supports over 2.3 million American jobs with over $229 billion in wages annually, while providing the foundation for American democratic influence and soft power abroad”.
And allowing AI companies to circumvent their obligations under copyright law wouldn’t just impact on the arts and entertainment industry, because, the letter went on, “the right to train AI on all copyright-protected content impacts all of America’s knowledge industries”.
“When tech and AI companies demand unfettered access to all data and information”, it explained, “they’re not just threatening movies, books and music, but the work of all writers, publishers, photographers, scientists, architects, engineers, designers, doctors, software developers and all other professionals who work with computers and generate intellectual property”.
“These professions are the core of how we discover, learn and share knowledge as a society and as a nation”, it went on. “This issue is not just about AI leadership or about economics and individual rights, but about America’s continued leadership in creating and owning valuable intellectual property in every field”.
Concluding, the letter stated that, “America didn’t become a global cultural powerhouse by accident. Our success stems directly from our fundamental respect for IP and copyright that rewards creative risk-taking by talented and hardworking Americans from every state and territory”.
“For nearly 250 years, US copyright law has balanced creator’s rights with the needs of the public, creating the world’s most vibrant creative economy. We recommend that the American AI Action Plan uphold existing copyright frameworks to maintain the strength of America’s creative and knowledge industries, as well as American cultural influence abroad”.