Generative artificial intelligence platforms are changing the way images are created, but they also raise important copyright questions. According to Professor of Law Cathay Y. N. Smith, these platforms let users type text descriptions into a box, and then the AI creates images based on those descriptions. The technology works by scanning the internet for visual images and their captions or text descriptions, which helps train the models to understand and generate new content.
Smith explained that there are two main copyright issues involved. "One of them is the one that is currently being litigated in different federal courts throughout the United States and it's the question of whether or not the use of copyrighted works to train these AI models is copyright infringement," she said.
She described both sides of this legal debate: "On the one hand, you have copyright owners who have said that it makes a—it makes a reproduction of our copyrighted work without our authorization. Right? You have not paid us, licensed our works in order to be used in these AI model trainings and so therefore, it's infringement." On the other side, "AI companies have argued that that use is considered copyright fair use and copyright fair use is an affirmative offense in the United States. And typically the purpose of it is to ensure that copyright law isn't being used to discourage the very creativity that copyright law is created to encourage."
Smith emphasized the need for balance as courts consider how old laws apply to new technologies: "I think it's important for copyright law to strike a balance. You know, a law that was created and passed at a time when none of this technology existed or even was conceivable. If we too broadly apply that law, we could have consequences of shutting down this publicly beneficial model and platform. On the other hand, if we too narrowly apply copyright law, we could also see an instance where we discourage continued and future human creators from creating art or works of expression because everything that they create and attempt to disseminate gets immediately sort of consumed and scanned and reproduced into an AI platform, with works being created by users that compete directly with them."
The ongoing court cases highlight how evolving technology can challenge existing intellectual property rules in ways lawmakers did not anticipate.