The Work of Copyright in the Age of Machine Production

Abstract

The advent of powerful Generative Artificial Intelligence (GenAI) marks a revolutionary moment in our system of cultural production. The challenge it poses is twofold: (1) Internally, to existing copyright-based business models of cultural production; and (2) Externally, by threating human authors more generally, it raises a deeper set of anxieties concerning livelihood, the inherent value of creativity, and deep innovation. This Article seeks to disentangle these two concerns, to avoid understandable variants of the latter resulting in distorting the former. Such disentanglement is necessary to ensure that copyright does not become the misguided vehicle for addressing larger cultural anxieties about ‘machine creativity’ that it is ill-suited to handle. The Articles examines broad arguments of GenAI copyright infringement by resorting to and elaborating copyright’s fundamental principles. It argues that, contrary to conventional wisdom, many of these arguments should be rejected on foundational grounds concerning the proper domain of copyright’s subject matter, rather than on secondary grounds going to the scope of copyright’s protection. This applies to both the upstream and downstream levels of the GenAI production process. With respect to the upstream level, the entire central legal debate is misguided. Both sides in this debate assume that reproduction of copyrighted works, strictly as part of the training process, is infringing, and disagree whether it is exempted as fair use. In fact, reproduction strictly limited for training purposes is not infringing on the more fundamental ground of not using any copyrightable subject matter, without ever needing to reach the fair use question. For purposes of copyright, the mere creation of a copy whose expressive use value will be consumed by no one is an irrelevant physical fact. On the downstream level, the argument that copying of creators’ “style” is infringing is subject to a similar analysis. GenAI outputs that replicates a creator’s general style rather than any specific work pertains to informational subject matter that has always been outside’s copyright domain. Subject matter rules play a dual function in this area. Internally, they ensure that protection does not extend to informational elements that copyright’s policy balance requires remain free. Externally, they prevent attempts to weaponize copyright to address genuine GenAI cultural policy concerns, albeit ones the field is neither designed nor equipped to handle.

Keywords: copyright, AI, generative AI, artificial intelligence