Fairness and Fair Use in Generative AI

Abstract

Although we are still a long way from the science fiction version of artificial general intelligence that thinks, feels, and refuses to “open the pod bay doors”, recent advances in machine learning and artificial intelligence (“AI”) have captured the public’s imagination and lawmakers’ interest. We now have large language models (“LLMs”) that can pass the bar exam, carry on (what passes for) a conversation on almost any topic, create new music, and create new visual art. These artifacts are often indistinguishable from their human authored counterparts, and yet can be produced at a speed and scale that transcends human ability.

Generative AI systems like the GPT and LLaMA language models and the Stable Diffusion and Midjourney text-to-image models were built by ingesting massive quantities of text and images from the Internet. This was done with little or no regard to whether those works were subject to copyright and whether the authors would object. The rise of generative AI poses important questions for copyright law. These questions are not entirely new, however. Generative AI gives us yet another context to consider copyright's most fundamental question; where do the rights of the copyright owner end, and the freedom to use copyrighted works begin?

My aim in this Essay is not establish that generative AI is, or should be, noninfringing; it is to outline an analytical framework for making that assessment in particular cases.

The Essay is based on my keynote address at delivered the 12th Annual Peter A. Jaszi Distinguished Lecture on Copyright Law at American University Washington College of Law on September 28, 2023.

Keywords: Copyright, Fair use, Generative AI, Copyright Safety, Foundation Models, Large language models

JEL Classification: K00