Two important reasons for keeping AI-generated works in the public domain

Generative AI continues to be the hot topic in the digital world – and beyond. A previous blog post noted that this has led to people finally asking the important question whether copyright is fit for the digital world. As far as AI is concerned, there are two sides to the question. The first is whether generative AI systems can be trained on copyright materials without the need for licensing. That has naturally dominated discussions, because many see an opportunity to impose what is effectively a copyright tax on generative AI. The other question is whether the output of generative AI systems can be copyrighted. As another Walled Post explained, the current situation is unclear. In the US, purely AI-generated art cannot currently be copyrighted and forms part of the public domain, but it may be possible to copyright works that include significant human input.

Given the current interest in generative AI, it’s no surprise that there are lots of pundits out there pontificating on what it all means. I find Christopher S Penn’s thoughts on the subject to be consistently insightful and worth reading, unlike those of many other commentators. Even better, his newsletter and blog are free. His most recent newsletter will be of particular interest to Walled Culture readers, and has a bold statement concerning AI and copyright:

We should unequivocally ensure machine-made content can never be protected under intellectual property laws, or else we’re going to destroy the entire creative economy.

His newsletter includes a short harmonised tune generated using AI. Penn points out that it is trivially easy to automate the process of varying that tune and its harmony using AI, in a way that scales to billions of harmonised tunes covering a large proportion of all possible songs:

If my billion songs are now copyrighted, then every musician who composes a song from today forward has to check that their composition isn’t in my catalog of a billion variations – and if it is (which, mathematically, it probably will be), they have to pay me.

Moreover, allowing copyright in this way would result in a computing arms race. Those with the deepest pockets could use more powerful hardware and software to produce more AI tunes faster than anyone else, allowing them to copyright them first:

That wipes out the music industry. That wipes out musical creativity, because suddenly there is no incentive to create and publish original music for commercial purposes, including making a living as a musician. You know you’ll just end up in a copyright lawsuit sooner or later with a company that had better technology than you.

That’s one good reason for not allowing music – or images, videos or text – generated by AI to be granted copyright. As Penn writes, doing so would just create a huge industry whose only purpose is generating a library of works that is used for suing human creators for alleged copyright infringement. The bullying and waste already caused by the similar patent troll industry shows why this is not something we would want. Here’s another reason why copyright for AI creations is a bad idea according to Penn:

If machine works remain non-copyrightable, there’s a strong disincentive for companies like Disney to use machine-made works. They won’t be able to enforce copyright on them, which makes those works less valuable than human-led works that they can fully protect. If machine works suddenly have the same copyright status as human-led works, then a corporation like Disney has much greater incentive to replace human creators as quickly as possible with machines, because the machines will be able to scale their created works to levels only limited by compute power.

This chimes with something that I have argued before: that generative AI could help to make human-generated art more valuable. The value of human creativity will be further enhanced if companies are unable to claim copyright in AI-generated works. It’s an important line of thinking, because it emphasises that it is not in the interest of artists to allow copyright on AI-generated works, whatever Big Copyright might have them believe.

Featured image by Christopher S Penn.

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