Wherein The Copia Institute Tells The Copyright Office There’s No Place For Copyright Law In AI Training

These days everyone seems to be talking about AI, and the Copyright Office is no exception, although it may make sense for it to speak here because people keep trying to invoke copyright as a concept implicated by various aspects of AI, including, and perhaps especially, with regard to training" AI systems. So the Copyright Office recently launched a study to get feedback on the role copyright has, or should be changed to have, in shaping any law that bears on AI, and earlier this week the Copia Institute filed an initial comment in that study.

In our comment we made several points, but the main one was that, at least when it comes to AI training, copyright law needs to butt out. It has no role to play now, nor could it constitutionally be changed to have one. And regardless of the legitimacy to any concerns for how AI may be used, allowing copyright to be an obstructing force in order to prevent AI systems from being developed will only have damaging effects not just deterring any benefits that the innovation might be able to provide but undermining the expressive freedoms we depend on.

In explaining our conclusion we first observed that one overarching problem poisoning any policy discussion on AI is that artificial intelligence" is a terrible term that obscures what we are actually talking about. Not only do we tend to conflate the ways we develop it (or train" it), with the way we use it, which presents its own promises and potential perils, but in general we all too often regard it as some new form of powerful magic that can either miraculously solve all sorts of previously intractable problems or threaten the survival of humanity. AI" can certainly inspire both naive enthusiasm prone to deploying it in damaging ways, and also equally unfounded moral panics preventing it from being used beneficially. It also can prompt genuine concerns as well as genuine excitement. Any policy discussion addressing it must therefore be able to cut through the emotion and tease out exactly what aspect of AI we are talking about when we are addressing those effects. We cannot afford to take analytical shortcuts, especially if it would lead us to inject copyright into an area of policy where it does not belong and its presence would instead cause its own harm.

Because AI is not in fact magic; in reality it is simply a sophisticated software tool that helps us process information and ideas around us. And copyright law exists to make sure that there is information and ideas for the public to engage with. It does so by bestowing on the copyright owner certain exclusive rights in the hopes that this exclusivity makes it economically viable for them to create the works containing those ideas and information. But these exclusive rights necessarily all focus on the creation and performance of their works. None of the rights limit how the public can then consume those works once they exist, because, indeed, the whole point of helping ensure they could exist is so that the public can consume them. Copyright law wouldn't make sense, and probably not be constitutional per the Progress Clause, if the way it worked constrained that consumption and thus the public's engagement with those ideas and information.

It also would offend the First Amendment because the right of free expression inherently includes what is often referred to as the right to read (or, more broadly, the right to receive information and ideas). Which is a big reason why book bans are so constitutionally odious, because they explicitly and deliberately attack that right. But people don't just have the right to consume information and ideas directly through their own eyes and ears. They have the right to use tools to help them do it, including technological ones. As we explained in our comment, the ability to use tools to receive and perceive created works is often integral to facilitating that consumption - after all, how could the public listen to a record without a record player, or consume digital media without a computer. No law could prevent the use of tools without seriously impinging upon the inherent right to consume the works entirely. The United States is also a signatory to the Marrakesh Treaty, which addresses the unique need by those with visual and audio impairments to use tools such as screen readers to help them consume the works to which they would otherwise be entitled to perceive. Of course, it is not only those with such impairments who may have need to use such tools, and the right to format shift should allow anyone to use a screen reader to help them consume works if such tools will help them glean those ideas effectively.

What too often gets lost in the discussion of AI is that because we are not talking about some exceptional form of magic but rather just fancy software, AI training must be understood as simply being an extension of these same principles that allow the public to use tools, including software tools, to help them consume works. After all, if people can direct their screen reader to read one work, they should be able to direct their screen reader to read many works. Conversely, if they cannot use a tool to read many works, then it undermines their ability to use a tool to help them read any. Thus it is critically important that copyright law not interfere with AI training in order not to interfere with the public's right to consume works as they currently should be able to do.

So at minimum such AI training needs to be considered a fair use, but the better practice is to recognize that there is no role for copyright to play when it comes to AI training at all. To say it is allowed as a fair use is to inflate the power of a copyright holder beyond what the statute or Constitution should allow because it suggests that using tools to consume works could ever potentially be an infringement, which only happens to be excused in this context. But copyright law is not supposed to give copyright owners such power over the consumption of their works, which we would then need to be dependent on fair use to temper. It should never apply to limit the consumption of works in any context, and we should not let concerns about AI generally, or their uses or outputs specifically, to open the door to copyright law ever becoming an obstacle to that consumption.