Since our founding, we have sought out ways that new technologies can serve the public good, and we believe that generative AI can be a powerful tool to enhance human creativity and to benefit the commons. At the same time, we also recognize that it carries with it the risk of bringing about significant harm. We used this opportunity to explain to the Copyright Office why we believe that the proper application of copyright law can guide the development and use of generative AI in ways that serve the public and to highlight what we have learned from our community through the consultations we have held throughout 2023 and at our recent Global Summit about both the risks and opportunities that generative AI holds.
In this post we summarize the key point of our submission, namely:
AI training generally constitutes fair use
Copyright should protect AI outputs with significant human creative input
The substantial standard similarity should apply to Infringement by AI outputs
Creators should be able to express their preferences
Copyright cannot solve everything related to generative AI
AI training generally constitutes fair use
We believe that, in general, training generative AI constitutes fair use under current U.S. law. Using creative works to train generative AI fits with the long line of cases that has found that non-consumptive, technological uses of creative works in ways that are unrelated to the expressive content of those works are transformative fair uses, such as Authors Guild v. Google and Kelly v. Arriba Soft. Moreover, the most recent Supreme Court ruling on fair use, Andy Warhol Foundation v. Goldsmith, supports this conclusion. As we commented upon the decision’s release, the Warhol case focus on the specific way a follow-on use compares with the original use of a work indicates that training generative AI on creative works is transformative and should be fair use. This is because the use of copyrighted works for AI training has a fundamentally different purpose from the original aesthetic purposes of those works.
Copyright protection for AI outputs subject to significant human creative input
Additionally, we believe that developers of generative AI tools should not receive copyright protection over the outputs of those tools. Copyright law already provides enough incentives to encourage development of these tools by protecting code, and extending protection to their outputs is unnecessary to encourage innovation and investment in this space.
Infringement should be determined using the substantial similarity test
We believe that the substantial similarity standard that already exists in copyright law is sufficient to address where AI outputs infringe on other works. The debate about how copyright should apply to generative AI has often been cast in all-or-nothing terms — does something infringe on pre-existing copyrights or not? The answer to this question is certainly that generative AI can infringe on other works, but just as easily it may not. As with any other question about the substantial similarity between two works, these issues will be highly fact specific, and we cannot automatically say whether works produced by generative AI tools infringe or not.
Creators should be able to express their preferences
In general, we believe there is value in methods that enable individuals to to signal their preferences for how their works are shared in the context of generative AI. In our community consultations, we heard general support for preference signals, but there was no consensus in how best to do this. Opt-ins and opt-outs may be one way, but we do not believe they need to be required by US copyright law; instead, we would like to see voluntary schemes, similar to approaches to web scraping, which allow for standardized expression of these preferences without creating strict barriers to usage in cases where it may be appropriate.
Transparency is necessary to build trust — Copyright is only one lens through which to consider AI regulation
We urge caution and flexibility in any approach to regulating generative AI through copyright. We believe that copyright policy can guide the development of generative AI in ways that benefit all, but that overregulation or inappropriate regulation can hurt both the technology and the public. For example, measures that improve transparency into AI models can build trust in AI models by allowing outside observers to “look under the hood” to investigate how they work. But these measures should not be rooted in copyright law. Copyright is just one lens through which we can view generative AI, and it is ill equipped to deal with many of the social harms that concern us and many others. Attempting to use copyright to solve all of these issues may have unintended consequences and ultimately do more harm than good.
We are happy to see the Copyright Office seeking out guidance on these many difficult questions. We will have to wait to see what comes from this, but we will hope for the best, and continue to engage our community so we can more fully understand what role generative AI should play in building the commons and serving the public good.
Kyle K. Courtney — Open Culture VOICES, Season 2 Episode 32
Kyle believes that “the artistic and creative expressions of humanity is the best way to experience our human efforts” and open GLAM makes this a reality for much more than what you can see on a given day in a museum. Open GLAM also helps drive more digitization of collections around the world in an effort to make institutions more known.
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Kyle is a copyright advisor at Harvard library and helps people understand how material can be used in the library and online for users.
Kyle responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
CC Licenses make it possible to share content legally and openly. Over the past 20 years, they have unlocked approximately 3 billion articles, books, research, artwork, and music. They’re a global standard and power open sharing on popular platforms like Wikipedia, Flickr, YouTube, Medium, Vimeo, and Khan Academy.
CC’s Legal Tools are a free and reliable public good. Yet most people are unaware that their infrastructure and stewardship takes a lot of money and work to maintain.
We need to secure immediate and long term funding for the CC licenses and CC0 public domain tool, which are key to building a healthy commons. We’re facing many challenges and threats to the commons–libraries are under attack, misinformation is rampant, and climate change threatens us all. CC is one of the few nonprofit, mission-driven organizations fighting to ensure we have a sound legal infrastructure backing open ecosystems, so that culture and knowledge are shared in order to foster understanding and find equitable solutions to our world’s most pressing challenges.
We need support from like-minded funders to champion sharing practices and tools that oppose the enclosure of the commons.
That’s why we’re launching the Open Infrastructure Circle (OIC) — an initiative to obtain annual or multi-year support from foundations, corporations, and individuals for Creative Commons’ core operations and license infrastructure.
With consistent funding, we can resolve “technical debts” (years of work we’ve had to put on hold due to underfunding!) and make the CC Licenses more user-friendly and accessible to our large, global community. The world has changed a lot since the CC Licenses were first created in 2002, and we want to ensure they stay relevant and easy to use going forward.
As part of our #20CC anniversary, last year we joined forces with Fine Acts to spark a global dialogue on what better sharing looks like in action. Our #BetterSharing collection of illustrations was the result — we gathered insights from 12 prominent open advocates around the world and tasked 12 renowned artists who embrace openness with transforming these perspectives into captivating visual pieces available under a CC license.
Each month throughout 2023, we will be spotlighting a different CC-licensed illustration from the collection on our social media headers and the CC blog. For November, we’re excited to showcase “Shared Knowledge, Shared Future” by Colombian illustrator, Luisa Brando. The piece, licensed under CC BY-SA 4.0, was inspired by a quote from Molly Van Houweling, former chair of CC’s Board of Directors:
“Better sharing for a brighter future means that the world is wrapped in a living connective tissue of shared knowledge, culture, and insights that spread joy and alleviate suffering.”
Meet the artist:
“Luisa Brando” used by permission of “TheGreats.co.”
Luisa Brando is dedicated to producing visual art and architecture projects sensitive to heritage conservation and dichotomies between nature and culture, tradition and development. Brando currently teaches at Universidad de los Andes (Bogotá), coordinates a Master Plan in Ibague, and continues her artistic work on the geopolitics, images and imaginations of water and other living beings.
Maarten Zeinstra — Open Culture VOICES, Season 2 Episode 31
Maarten believes that “Open GLAM is a necessity of a disbalanced copyright framework.” Maarten talks about how open access policies help institutions achieve their public missions. Open access policies in instutions provides good evidence that society and communities need access to cultural heritage to flourish.
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Maarten is an independent consultant and intellectual property lawyer who works with GLAM institutions on open access policies and implementing open information management systems.
Maarten responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
Visitors to the CC home webpage recently were welcomed by a big black box and the message “Sorry: This video does not exist.” In the spot where CC was showcasing a custom video made last year for CC’s 20th anniversary, there was now a stark error message, making it look like the CC website was broken.
After some investigation, CC learned that the copy of the video we had hosted on the Vimeo platform had been tagged with an automated copyright violation takedown notice. Anyone who has had this experience knows that typically a service will stop delivering content that automated processes have identified as violating copyright, and then it’s up to you as the account holder to prove you have rights to share the work, or modify it so it no longer triggers automated filters. Meanwhile, your content is missing and your website may look broken.
Almost a week later, Vimeo approved CC’s detailed appeal of the takedown and the video was back on our home webpage. It’s not always easy to figure out how to file an appeal for a takedown like this — in fact Vimeo’s appeal button led to a dead link, so it actually took us at CC extra time to even figure out how to file an appeal with Vimeo.
Robot justice may be blind, but there was plenty of irony in this takedown notice, delivered to an organization like CC that knows a bit about people’s freedom to share. Irony on top of irony: the specific content flagged for copyright infringement was a sample of a musical track from The Wired CD, perhaps the most famous collection of openly licensed music ever published.
Fortunately, CC had taken great care in the production of the video, carefully tracking attributions for every sound and image. In another dose of irony, there is no good way to display the rather lengthy attributions for this video on Vimeo, and so one must look to a different host — like Flickr — for the video to display the full attribution statement.
The internet may not have missed this specific version of a short video for a few days, but this small example demonstrates the stakes of automated systems that put the interests of big copyright ahead of everyone else’s. Even with the black and white “Sorry,” the message that “this video does not exist” betrays a vision of a world where copyright reigns supreme with little to no space left for uses based on fundamental freedoms, like the freedom of expression. Because the video does indeed still exist, not only on Vimeo, where it was merely locked in private mode, awaiting appeal, but also anywhere else it might live, like on Flickr, the Internet Archive, Wikimedia Commons, YouTube (which also has the video in private mode, pending CC’s appeal), or — if you have the resources — on your own internet hosting infrastructure.
CC was embedding the version of this video hosted on Vimeo on our home webpage because Vimeo embedding has some technical advantages, but one lesson here is never to put all your web hosting eggs in a single basket — if you have the time and resources to share open content in multiple places, your content is less likely to “not exist” due to the whims of any one host.
Another lesson is that good attribution practices are not only important to meet the requirements of open licensing — giving credit to upstream creators and guidance to downstream users — but also as a record of the multiple layers of rights and permissions within your work, ready for you to use when you get that unexpected copyright takedown notice or legal challenge. Because CC had taken such care with the attributions for this video, we were well-equipped to file a successful appeal with Vimeo.
Marike van Roon — Open Culture VOICES, Season 2 Episode 30
Marike van Roon shares that “the main benefit of open culture is accessibility” because if you are not fortunate enough to be part of organization that pays for you to have access to collections and you don’t live in city with public collections it’s almost impossible to access a lot of cultural heritage. In this episode we learn about the institutions that support opening up collections in the Netherlands and how detrimental copyright laws and pay walls are to open culture around the world.
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Marike van Roon is currently an independent art historian and has been part of the cultural heritage sector in the nNetherlands for more than 30years. She is also a Wikipedian and was a member of the board of Wikimedia Nederland.
Marike responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
CC and Communia Statement on Transparency in the EU AI Act
“EU Flag Neural Network” by Creative Commons was cropped from an image generated by the DALL-E 2 AI platform with the text prompt “European Union flag neural network.” CC dedicates any rights it holds to the image to the public domain via CC0.
The European Union’s Artificial Intelligence (AI) Act will be discussed at a key trilogue meeting on 24 October 2023 — a trilogue is a meeting bringing together the three bodies of the European Union for the last phase of negotiations: the European Commission, the European Council and the European Parliament. CC collaborated with Communia to summarize our views emphasizing the importance of a balanced and tailored approach to regulating foundation models and of transparency in general. Additional organizations that support public interest AI policy have also signed to support these positions.
Statement on Transparency in the AI Act
The undersigned are civil society organizations advocating in the public interest, and representing knowledge users and creative communities.
We are encouraged that the Spanish Presidency is considering how to tailor its approach to foundation models more carefully, including an emphasis on transparency. We reiterate that copyright is not the only prism through which reporting and transparency requirements should be seen in the AI Act.
General transparency responsibilities for training data
Greater openness and transparency in the development of AI models can serve the public interest and facilitate better sharing by building trust among creators and users. As such, we generally support more transparency around the training data for regulated AI systems, and not only on training data that is protected by copyright.
Copyright balance
We also believe that the existing copyright flexibilities for the use of copyrighted materials as training data must be upheld. The 2019 Directive on Copyright in the Digital Single Market and specifically its provisions on text-and-data mining exceptions for scientific research purposes and for general purposes provide a suitable framework for AI training. They offer legal certainty and strike the right balance between the rights of rightsholders and the freedoms necessary to stimulate scientific research and further creativity and innovation.
Proportionate approach
We support a proportionate, realistic, and practical approach to meeting the transparency obligation, which would put less onerous burdens on smaller players including non-commercial players and SMEs, as well as models developed using FOSS, in order not to stifle innovation in AI development. Too burdensome an obligation on such players may create significant barriers to innovation and drive market concentration, leading the development of AI to only occur within a small number of large, well-resourced commercial operators.
Lack of clarity on copyright transparency obligation
We welcome the proposal to require AI developers to disclose the copyright compliance policies followed during the training of regulated AI systems. We are still concerned with the lack of clarity on the scope and content of the obligation to provide a detailed summary of the training data. AI developers should not be expected to literally list out every item in the training content. We maintain that such level of detail is not practical, nor is it necessary for implementing opt-outs and assessing compliance with the general purpose text-and-data mining exception. We would welcome further clarification by the co-legislators on this obligation. In addition, an independent and accountable entity, such as the foreseen AI Office, should develop processes to implement it.
If we are going to solve climate change, the knowledge about it must be open. Only 47% of research papers on climate change are open. That means less than half of all climate research can be read by the public, researchers, journalists, educators, policy makers, students and others seeking to mobilize this knowledge in mitigations and solutions for climate change. One year ago, Creative Commons and our partners — SPARC & EIFL with the guidance of the Steering Committee — launched the Open Climate Campaign to address the lack of access to climate change research. Comprising 11 goals, the Open Climate Campaign’s mission is to make the open sharing of research the norm in climate science.
The Campaign was successfully launched on 30 August 2022 and was covered by the International Science Council, Infodocket, Research Information, Nature, and Axios Brief. We began by developing campaign materials — for our target audiences — to advertise the Campaign and to persuade researchers, librarians, national governments, environmental organizations and funders the free and open sharing of the research they create and fund is key to addressing climate change. We leveraged these materials to organize and present at 39 events to connect with our target audiences. We partnered with the Curtin Open Knowledge Initiative to secure open access benchmark data for climate change publications, and drafted a report on the legal and policy barriers to open access; both activities helped the Campaign understand the landscape of open access in climate change research.
In Year One, the Campaign began working with National Governments and partnered with the Open Research Funder’s Group to offer a policy development program for funders of climate change research. The Campaign secured endorsements from several organizations including, but not limited to, PLOS, Wildlife Conservation Society, and the Digital Public Goods Alliance.
In keeping with the global focus of the Campaign, we also began recruiting for a working group of open access and climate change experts — in the global south — to ensure inclusive outcomes throughout the campaign. Finally, we made progress on the Campaign’s unbinding work by beginning to form relationships with publishers and open access tools to facilitate the opening of past climate change publications.
The Open Climate Campaign is looking forward to leveraging this success and progress into Year 2 as the Campaign continues to work on developing open access policies with national governments, funders, and environmental organizations in service of changing the culture of sharing in climate change research.
Pierre El Khoury — Open Culture VOICES, Season 2 Episode 29
“For researchers GLAM’s preserve primary sources” which is of great benefit when creating knowledge and research about the present and the past. Pierre talks about how open access policies in GLAM’s make knowledge shared and more widespread instead of just for the elite few with permission from the collecting institution.
Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Pierre is the Vice Dean of the Faculty of Law at the Al Hikma University in Lebanon where he teaches on intellectual property law and information and communications technology law.
Pierre responds to the following questions:
What are the main benefits of open GLAM?
What are the barriers?
Could you share something someone else told you that opened up your eyes and mind about open GLAM?
Do you have a personal message to those hesitating to open up collections?
Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.
