Copyright gone Copywrong

We have two months to hold back the British Empire v. 2

Your move, Knight. Image courtesy of Tran Van Quyet via istockphoto

Forgive the somewhat dramatic subhead. But considering the very real implications of a new legal framework governing copyright and generative AI, if we let our guard down, the authorities & the AI corporations will twist the knife in our back, with an extra dose of Maldon salt.

Let’s get right into it, shall we?

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The UK government has opened a public consultation for its legal framework governing generative AI and copyright that “supports both the AI sector and the creative industries.”¹ The consultation is published by the UK’s Intellectual Property Office (also known by the rather ironic acronym “IPO”), the Department for Science, Innovation and Technology and the Department for Culture, Media and Sport.

First, a quick overview of what is at stake, the deadline to submit a comment, and a few things to keep in mind before you do.

tl;dr

At issue: The legal and practical definition of copyright, and the ability of AI companies to use your work without consent, credit, or compensation, and build technology or systems with the potential to compete with you in the marketplace

Link: The open consultation is here.

Deadline for comment: February 25, 2025, 11:59 pm UK time

How to comment: Via email or the online link

Who can comment: Anyone who is a citizen or resident of the United Kingdom. And also, apparently, anyone else outside the UK who cares about this topic—nothing I have seen on the proposal website or elsewhere explicitly states that only UK citizens or residents may respond. For additional due diligence, I contacted a UK IP attorney (last name, Mr. Bond) and he said he wasn’t aware of any restrictions in this regard. So please also share and forward widely to all your friends and colleagues in and outside the UK.

Why to comment: We thought copyright would always be there to protect our work. That may no longer be the case, in practice, if we allow this type of legislation to go through.

Read the entire post. Please take the time. Resist social media, wailing children, the scent of Christmas cookies, and other distractions for this. I cannot emphasize enough how critical this is.

Before you comment: If you’ve commented on government legislation before, you’re likely familiar with how it all works, and what types of comments tend to be more useful than others. If this is your first time participating in a public comment or consultation, all the more important to read at minimum this post before you submit your comments.

**Above all, avoid making the argument against the usage of generative AI in general. This is not what this legislation is about, and such comments are likely to be ignored. As UK-based animator Jodie Hudson explains [emphasis mine], “The question the UK wants feedback on is not whether AI will be used in the creative industries or not, but how it’s used in the creative industries.”

Lastly, please do bother making a comment if you are able. This one act you do is potentially more meaningful and impactful than any online debates or discussions you can engage in, because this legislation will hold legal, material weight²; online debates do not.

🌰 In a bigger nutshell

What is copyright?

We use the term on a regular basis, but do we really know what it means, especially in its legal sense? Disclaimer needed here: I’m not an attorney, so please feel free to consult one, but here is a definition from the U.S. Copyright Office [emphasis and the exclamation point theirs]:

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. In copyright law, there are a lot of different types of works, including paintings, photographs, illustrations, musical compositions, sound recordings, computer programs, books, poems, blog posts, movies, architectural works, plays, and so much more!

In other words, that idea you have for a blockbuster novel, a breakout new song, or a blueprint for your city’s new opera hall? Not copyrightable until you render it in some tangible format. So if you tell someone about your idea, and they flesh it out on paper, in video, or another tangible form (this includes digital) and copyright it, you’re out of luck. (I doubt an NDA would fully protect you either, but again, consult legal counsel.)

As for Fair Use, the goblin that’s been a thorn in the side of many a discussion and debate—and a perfumed plastic rose for generative AI models—it’s considerably more complicated. Specifically, it is Section 107 of the Copyright Act that outlines the scope of Fair Use; it calls for the consideration of the following four factors:

1. The purpose and character of the usage—is the intended use of a commercial, nonprofit, or educational nature?

2. The nature of the copyrighted work—to what degree does the work encourage creative expression? Is it highly artistic or more factual?

3. The amount and substance of the portion of the copyrighted work used—how much of the work, and which portion or element of the work were used?

4. The effect on the potential market for or value of the copyrighted work—this speaks for itself, but essentially, does unlicensed use harm the market or economic value of the copyrighted work, whether present or future?

In brief, what a rose is to copyright, a bramble bush is to fair use. Here’s an official rabbit hole for your reading pleasure.

Note that legally, copyright is distinct from trademarks and patents.

Who should be concerned

Copyright matters to anyone who creates anything in tangible (material or digital) form for a living or as a hobby, for example people who:

• Write poetry, essays, books, articles, and other fiction or non fiction

• Draw, paint, illustrate, design, photograph, or create any form of art in 2D or 3D

• Compose (and perform) original songs or musical works

• Write, direct, or produce films, documentaries, or other audiovisual media

• Create code for computer or software programs

• Obtain ownership rights through “work for hire” contracts

In the eyes of the U.S. Copyright Office, anyone who creates an original work and fixes it in a tangible form, is a copyright owner. Critically, “Copyright exists automatically in an original work of authorship once it is fixed.”

Registering your work with the Copyright Office gives you specific additional rights, such as the ability to enforce your exclusive rights of copyright via litigation and to facilitate licensing fees for your work by enabling others to find the rightful copyright owner of a work they wish to use. Notably, it also does something that’s rarely brought up in these discussions:

Copyright registration … provides a record of this nation’s creativity.

So, creativity patriots of America, register your work! Make America Creative Again!

Meanwhile… across the pond

The UK government has recently opened up a consultation period for a new round of updates to its copyright statutes. It seeks comments from the public on critical issues such as digital replicas, “copyright protection for computer-generated works” and the following objectives:

Boosting trust and transparency between sectors, by ensuring AI developers provide right holders with greater clarity about how they use their material

Enhancing right holders’ control over whether or not their works are used to train AI models, and their ability to be paid for its use where they so wish

Ensuring AI developers have access to high-quality material to train leading AI models in the UK and support innovation across the UK AI sector

It sounds good, on first impression, doesn’t it dear. Very diplomatically worded. You can almost smell the Earl Grey and the croissants. As with all legal proposals that say anything about “ensuring AI developers have access to high-quality material” and “supporting innovation in the AI sector,” one might indeed wish to brush aside the pleasantries and take a long hard look at the implications buried within. As an example, in Section B.2 AI training and copyright, Article 42 states:

“…in many cases, AI models are trained using works made available to the public on the Internet. These are often not expressly licensed for AI model training, and the creators of those works are not compensated for their use.”

Article 45:

“Some AI developers argue that existing legal exceptions in UK copyright law allow them to use copyright works when conducting training activity in the UK. If, their training activities take place in other countries, they may argue they are not subject to UK jurisdiction. But right holders reject these arguments. They maintain that, by making copies of their works to train models, AI developers are infringing their copyright in the UK.”

Article 47 assures us that the intention of the proposed legislation is to “ensure that both the AI and creative industries can share in the benefits of AI, and that both sectors are able to grow together.”

That’s really great. Maybe we can all play nicely together in the sandbox. But then things take a somewhat darker turn. Article 48:

The government does not believe that waiting for ongoing legal cases to resolve will provide the certainty that our AI and creative industries need in a timely fashion, or, potentially, at all. We are therefore considering a more direct intervention through legislation to clarify the rules in this area and establish a fair balance in law.

The government “does not believe” in waiting for lawsuits to resolve. Big Tech is pretty impatient too. They want their high-quality data, and they want it now. What better way to get out in front of all those pesky, snail-paced legal proceedings than to effect a “more direct intervention”? This sounds an awful lot like changing the law ahead of the lawsuit.

The proposal presents four options, bizarrely presented as Options 0, 1, 2, and 3. I can’t help but take “Option Zero” to imply that we should simply skip over this one. This is how they’re introduced:

Option 0: Do nothing: Copyright and related laws remain as they are.

Option 1: Strengthen copyright requiring licensing in all cases

Option 2: A broad data mining exception

Option 3: A data mining exception which allows right holders to reserve their rights, underpinned by supporting measures on transparency

Option 1 offers the strongest protection for rights holders (and cries about being less competitive in the AI sector as a result). Option 2 is the copyright killer—it would allow “data mining on copyright works – including for AI training – without right holders’ permission.” This would effefctively turn “fair use” into “unfair use.” Option 3 vaguely refers to a position of compromise, by having rights holders essentially have to opt their work out of AI training. Which, as we all know based on prior experience (cough Meta cough OpenAI cough so many others), isn’t going to work. AI developers have already scraped billions of words, images, music data, and minutes of video without permission or authorization—the onus should not be on us creatives to ask to “reserve” or “request the protection of” our rights. Copyright has historically been granted automatically, not as the result of an obligatory act of reserving your rights. As Article 67 of Option 3 states [emphasis mine]:

“AI developers would be able to train on material to which they have lawful access, but only to the extent that right holders had not expressly reserved their rights.”

I urge you to read the full texts of these options for yourself—they’re not long, and they are eye-opening. Also see Why you need to pay attention below.

Comments are welcome from creators, rights holders, and AI developers to help shape a copyright framework that allows both sectors to thrive. Remember the deadline is February 25, 2025. That date approaches furiously. We fully expect Big Tech to flood the comment form with arguments to let them bulldoze over creatives’ work with abandon, hence the next segment:

Why you need to pay attention

Don’t live in the UK? Right, so who cares what happens across the pond! You don’t drink tea anyway. Well. I doubt I have to explain how critical it is that we here in the U.S. keep close tabs on copyright legislation taking shape in other countries, especially countries as close to us as the UK. Because…

Once copyright protection is taken away or diluted, you can kiss your creative career good-bye.

Forbes contributor Virginie Berger explains:

The [UK] proposal includes a broad new copyright exception for commercial generative AI training, allowing AI companies to train on British copyrighted works without a license. Central to the controversy is the introduction of an opt-out system for copyright holders, which would permit AI companies to use copyrighted material by default unless rights holders explicitly request to opt out.

This polarizing move has sparked fierce criticism from creative industries, who argue that the proposed changes favor big tech at the expense of protecting creators and intellectual property.

We already know how “opt-out” works. It doesn’t. You create, produce, and publish; they scrape, train, and monetize. Whether or not it’s legal or ethical. Don’t like that? You’ll have to send in your ample legal resources, which costs money and time and… yeah.

But it’s not just your creative career. With generative AI and the speed with which it’s evolving, our regulatory troubles won’t end there. There’s a concept called digital replica, defined generally as a reproduction of copy of your voice and/or physical likeness created with digital technology, such as artificial intelligence systems.

SAG-AFTRA, NAVA, and other groups representing professional actors are now fighting ferociously to protect their rights to their digital replicas. As well they should. You can’t just go out and buy a new face, you know? Botox aside, you’re stuck with the one ya got, pretty much for life. It’s a battle that could, all too easily and all too swiftly, come to have real-world implications for the rest of us—anyone who happens to have a face, a voice, and a body. Stay tuned on that. For now, be very, painfully, acutely aware of the slowly tilting, oil-slicked slope of the copyright debate. Because loss of copyright protection for your works will soon morph into loss of protection for your very identity. Let’s make sure the pull of profits—er, gravity and the oil don’t overwhelm our ability to stand on our own two feet.

A basic human right

It can be argued that there is a higher, moral stance to be taken vis-à-vis ownership of a work. Legal structures aside, most of us creatives agree that the works we produce are, and should be, ours, by nature and by default. If I write a book, it is my book. If I paint a painting, it is my painting. If I compose a song, that is my song. I should have a say where my work is displayed, distributed, or performed, whether it is altered, how much I want to charge for it, and certainly whether someone else can claim authorship to it.

Creative ownership is, and should be, an inalienable human right. Perhaps you disagree with this, and take the stance that this would be true only for those who subjectively subscribe to this statement. Now, if you personally take the stance that creative ownership is not an inherent right, and you’re willing to give up your ownership rights to others without your authorization, permission or knowledge, that is on you and you only. You cannot impose this stance on others who disagree with you, much as you cannot impose your beliefs of any other kind (bodily autonomy, for example) on others. That is, typically, considered dictating, controlling, or oppressing others. Gosh where have we seen that before… besides throughout all of human history…

I digress.

Bottom line, it’s up to us, yet again, to defend and protect our rights as creators, no matter how rationally inalienable and fundamental they may be.

What it’s not about

The proposed UK legislation is not an argument about whether to use generative AI or not. Schrödinger already dropped the bag, and The Cat’s out. For those wondering whether it’s alive or dead, it’s both and neither: it’s a zombie, and it’s gone feral. Lock your doors at night people.

Besides, we cannot stuff the LLM genies back into their bottles. Our—ok, some people’s—three wishes have been granted:

• Produce “content” at lightning speed and ludicrous volumes

• Claim respected titles like “artist,” “musician,” and “author” without having to put in the years of experience, thought, and hard work to deserve it

• Triple our earning power while decimating the livelihoods of our fellow creative humans (or at least give us the next new shiny thing to debate ad nauseum online)

This regulation that’s on the table is more critical than the debate of whether to AI or not to AI. The protections afforded by the very essence of copyright are on the chopping block. If we allow AI companies to train on our work, whether or not it’s copyrighted, the protections of ownership automatically granted to every creator, whether or not they formally register their work, will essentially be nullified. And then the only way to protect your work will be to write it out on paper with squid ink and hand-bind it, or have it printed without ever touching the Internet. Is that the future we want?

Rabbit holes to explore

The text of the UK Government’s Copyright, Designs and Patents Act 1988 is here. It’s long. Really long. I wouldn’t wish it upon my worst enemy. Suggested additional reading: author Kate Mosse’s insightful article in the Financial Times about AI and copyright (thanks to Ed Newton-Rex for the suggestion).

I also recommend Virginie Berger’s article in Forbes, quoted above: “What the U.K.’s AI Copyright Reform Means for 2025 and Beyond.” Virginie is a Los Angeles-based music & tech business professional and writer who covers AI and rights management.

For additional insights and template examples of responses you can customize, see Ed Newton-Rex’s article on the topic here on Substack and his posts on BlueSky. (For more context, Ed was Head of Audio at Stability AI before he left due to his personal opposition to the company’s “exploitative” practices of using creatives’ works to train their models without consent. Ed is also behind the simply titled but massively supported “Statement on AI Training”, which I heartily encourage creatives to sign.)

The (tragically) late Suchir Balaji’s post “When does generative AI qualify for fair use?” which goes into some illuminating detail about how generative models are trained on “copies of copyrighted data.” Suchir, you might have heard, was a brilliant young engineer who played a key role in the development of OpenAI’s ChatGPT and later turned whistleblower against the company on ethical grounds. He died this November 26 of an apparent suicide. This was just after he had been named in The New York Times lawsuit against OpenAI as someone who had important documents for the newspaper’s case. Needless to say, theories are already swirling…

If you have additional resources you’d like me to add, please DM me or put it into the comments below.

One more thing.

I know it’s the holidays. Many of you are traveling, running around doing last-minute shopping, preparing dinner menus. It’s more than a little inconvenient that this “open consultation” period was sprung upon us on December 17, a mere seven wondrous and blessed days before Christmas Eve. If you were Stephen King, perhaps you would think it was some nefarious plot cooked up by the UK politicians to ensure we have as little time as possible to comment. But that’s just rubbish isn’t it… I’m sure they were just really busy all year. Nevertheless, do make sure you don your White Knight of Copyright regalia, and ride into the New Year with a thoughtful comment or two for the Lords.

1. Pamela Bryer, of the intellectual property firm Marks & Clerk, in her blog post titled “Have your say in the UK’s copyright and AI consultation,” posted December 18, 2024 on the Lexology website at https://www.lexology.com/library/detail.aspx?g=f2275ccb-d9fc-4e8e-b13a-cf128ad7e5fd.

2. The UK regulations will of course impact the people within the law’s jurisdiction; however, let us make no mistake that countries watch each other’s movements in terms of not just geopolitics but legal and regulatory frameworks as well. Vested interests here in the U.S. are sure to be emboldened if the UK updates pass with ease.