In discussions on social media, I’ve been taken aback by the strength of criticism that has been directed towards me for using an original AI image. I’ve been told that AI is unethical, that it’s based on ‘stolen’ IP and that it undermines the rights of creators. I think these comments are misconceived, but the negative comments have prompted me to reply somewhere where they might help to sway opinion. I’ve prepared a short submission to the Government’s consultation paper on Copyright and Artificial Intelligence.
This is a draft; if people have reasoned objections or observations, let me know of them and I’ll consider whether I need to amend them before submission. Responses to the consultation are due by 25th February.
Copyright and Artificial Intelligence: Consultation
The foundational assumptions
The consultation assumes that the protection of intellectual property is the equivalent to the protection of creative work. There are three things wrong with that. First, original work and the intellectual property which relates to it is commonly developed in fields which are not necessarily thought of as ‘creative’ activity. This is most obviously the case in works of science, works of scholarship and works of nonfiction. One of the recurring problems with debates about IP has been the failure to recognise that rules which apply to creative endeavour do not only apply to original creation. Restrictions on the dissemination and re-use of materials represent a major impediment to the production of academic work and nonfiction, presenting obstacles to scientific theory, modern history and the exchange of ideas.
Second, the protection of ‘rights holders’ does not guarantee protection for to the creators of original content. In many cases rights are held either by publishers, employers or by their successors in title. The publishers of academic works have a long history of acquiring copyright without paying authors, minimising payments to content creators and charging authors to allow open access. The primary effect of the copyright laws has been to defend, not the creators of intellectual property, but the interests of the businesses who have secured the rights.
Third, the copyright laws as currently constituted often act as an impediment to the development of original content. It is difficult to generalise with confidence, because the laws of copyright internationally are in such a mess, but ‘fair dealing’ is still hugely restrictive; the effects include requirements for permission to quote, select, illustrate or use materials for the purposes of teaching. Claims of intellectual property are routinely being made for historical texts and images, composed music, folk song, commonplace harmonic and melodic sequences; although such claims are without merit, they are used to bully and intimidate the creators of content into either paying or withdrawing their work. There is a presumption against using material that might be copyrighted, rather than a presumption of legitimate use.
What AI is doing
The objections to AI are currently focused on the issue of ‘training’, a subject mentioned 52 times in the consultation without being defined. ‘Large Language Modules’ are accused of ‘scraping’ original work in ways that infringe the IP of contents creators. ‘Scraping’, as I understand it, consists primarily of examining a huge range of potential sources, and using information gleaned about techniques, the identification of relationships and constellations of words, images or other material between different sources, and outputs, to offer new material which is based on those relationships, but is not recognisably the product of any individual source.
Copyright laws are supposed to protect work from being reproduced, not from it being used. LLMs differ from human analysts in the size, speed and criteria for use, but the core tasks employed in scraping depend on uses that in other contexts are unquestionably legitimate: perusal, selection and analysis. This, if we think about it dispassionately, is exactly what every creator, and most students of higher education, must learn to do. Students, in order to present original arguments or designs, learn to select material and place it in a structure – selection and ordering are the preconditions of effective evaluation. Everyone who has ever written an essay, a literature review or a story rooted in one of the basic plots can be said to be ‘scraping’. That is also how the creative imagination works: not from thoughts run wild, but from a sense of how to mould learned material into new and unfamiliar juxtapositions. AI may put things together in a different way, but the process of selection and analysis is equivalent to learning, and the nature of any infringement by AI is primarily a matter of scale. ‘Scraping’ is a normal and legitimate use of source material.
The interests of users
The consultation scarcely considers the interests of users at all. Artificial intelligence potentially offers end-users powers to produce content that could not otherwise have been developed. These include the power to generate high-quality images, schedules, information – and to do it at little or no cost to the user. There are problems in managing this, to be sure. Foremost among them will be to teach people how to do use AI well – to choose the best methods and presentations. The current lobby against AI is trying, not to make AI better or more responsible, but to stop it from doing what it is designed to do. This is a misconceived position that is intended to deny the benefits of AI to users.
I conclude that the reservation of rights to obstruct the development of AI should not be pursued.