Extended Collective Licensing for Use of Copyrighted Works for Machine Learning

Abstract

The fast development of generative artificial intelligence (“AI”) services—such as ChatGPT, Midjourney, Dall-E—have within a short period of time gained immense uptake and popularity. At the same time, such services have given rise to fundamental challenges from a copyright perspective. Court proceedings have been initiated in many jurisdictions on the compatibility of such services with copyright legislation.

Some scholars see the development of AI as a gradual process, to be dealt with, like earlier technologies, through incremental adaptation of the copyright framework. For others, AI represents so fundamental an innovation—a disruptive technology, a game changer, an apocalypse—that it threatens to shake copyright law to its very foundations. The Economist has described the challenges as a “battle royal.”

These technological and legal developments—and related economic consequences—have, in turn, raised political and scholarly interest in the issues at stake. For example, the World Intellectual Property Organization (“WIPO”) has dedicated studies and seminars to the topic, the Association Littéraire et Artistique Internationale (“ALAI”) 2023 Congress in Paris focused on AI and copyright, and several jurisdictions have or are considering specific provisions in copyright law of relevance to this emerging technology. Entire symposia, including this one—the Kernochan Center’s 2024 annual symposium The Past, Present and Future of Copyright Licensing—are dedicated to related copyright issues.

A copyright-related question that has gained much attention is whether the output generated by generative AI services can obtain copyright protection, and if so, who the author is. Another question, which is the focus of this contribution, is whether the use of copyright protected content as part of the “training” of the AI—i.e., machine learning—constitutes copyright-relevant use, i.e., falls within the rights protected by copyright. And if so, whether the so-called extended collective licensing model could be a relevant vehicle (or mechanism) for clearing rights for such use. Related to aspects of extended collective licensing, issues have been raised around whether there are challenges associated with competition law that need to be taken into account.

Against this backdrop, this Article is structured as follows. Section I, deals with machine learning and copyright, i.e., whether and to what extent the use of copyrightprotected content as part of the “training” of the AI (machine learning) constitutes copyright-relevant use. Section II describes and discusses whether the extended collective licensing model could be a relevant mechanism for such use. Section III focuses on some challenges from a competition law perspective, and also relates to some relevant provisions in the EU directive on collective rights management. Section IV sets out some concluding remarks.