Garbage In, Garbage Out. Regulating Generative AI Through Copyright Law

Abstract

Both in the U.S. and in the EU, it is a matter of controversy whether copyrighted content may be used to train generative AI. In the U.S., the discourse circles around the impact which copyright has on innovation and competition. In the EU, practical problems dominate the discussions. These problems have led rights holders to formulate concrete policy demands. The European Parliament wants to address these demands in the draft AI Act (AIA). The rule it proposes (Art. 28(4)(c)) threatens to further diminish the extent to which EU Member States participate in the value creation which the development of generative AI entails. As things are, European copyright law already risks to undermine the AIA’s provisions on product safety. Instead of focusing on practical problems, we should devote our attention to how we want to structure the societal change which generative AI will bring about, and on the role which we want copyright to play in this change.

Keywords: Copyright, generative AI, AI Act, AIA, TDM, text and data mining, fair use, European Union, EU, United States, U.S.

JEL Classification: K21, K29, K39