EU accused of leaving ‘devastating' copyright loophole in AI Act
An architect of EU copyright law has said legislation is needed to protect writers, musicians and creatives left exposed by an 'irresponsible' legal gap in the EU's Artificial Intelligence Act.
The intervention came as 15 cultural organisations wrote to the European Commission this week warning that draft rules to implement the AI Act were 'taking several steps backwards' on copyright, while one writer spoke of a 'devastating' loophole.
Axel Voss, a German centre-right member of the European parliament, who played a key role in writing the EU's 2019 copyright directive, said that law was never conceived to deal with generative AI models: systems that can generate text, images or music with a simple text prompt.
Voss told the Guardian that 'a legal gap' had opened up after the conclusion of the EU's AI Act, which meant copyright was not enforceable in this area. 'What I do not understand is that we are supporting big tech instead of protecting European creative ideas and content.'
The EU's AI Act, which came into force last year, was already in the works when ChatGPT, an artificial intelligence chatbot that can generate essays, jokes and job applications, burst into public consciousness in late 2022, becoming the fastest-growing consumer application in history.
ChatGPT was developed by OpenAI, which is also behind the AI image generator Dall-E. The rapid rise of generative AI systems, which are based on vast troves of books, newspaper articles, images and songs, has caused alarm among authors, newspapers and musicians, triggering a slew of lawsuits about alleged breaches of copyright.
Voss said he had been unable to get majorities of EU lawmakers to ensure strong copyright protection when the issue emerged in the late stages of negotiating the AI Act. The absence of strong provisions on copyright was 'irresponsible' and it was 'unbelievable' that the legal gap remained, he said.
He would like to see legislation to fill that gap, but said it would take years, after the European Commission's decision last week to withdraw the proposed AI Liability Act. 'It might be getting very difficult. And so the infringement of copyright is continuing, but nobody can prove it.'
The AI Act states that tech firms must comply with 2019 copyright law, which includes an exemption for text and data mining.
Voss said this exemption from copyright law was intended to have a limited private use, rather than allow the world's largest companies to harvest vast amounts of intellectual property. The introduction of the TDM exemption in the AI Act was 'a misunderstanding', he said.
This view was reinforced by a significant academic study last year by the legal scholar Tim Dornis and the computer scientist Sebastian Stober, which concluded that the training of generative AI models on published materials could not be considered 'a case of text and data mining' but 'copyright infringement'.
Meanwhile, the TDM exemption has sent shock waves across creative professions. Nina George, a German bestselling author whose works has been translated into 37 languages, described the TDM exception as 'devastating'. Exclusions from copyright, she said, were originally intended to balance the interest of authors against those of the public, such as allowing schools to photocopy texts. 'These AI exceptions for commercial use mean that business interest will be served for the first time,' she said. 'This is a shift of paradigms [and] a perverted way to bend copyrights and authors' rights to serve the interest of a few businesses.'
George, who is president of honour at the European Writers Council, said she had no way of finding out if any of her works had been used to feed generative AI systems. 'The lack of instruments to enforce any rights, this is the scandal in the construction of the AI Act [in] relation to copyright directive.'
Aafke Romeijn, a Dutch-language electropop artist, said there was no practical way for creatives to opt out of having their work used in AI applications.
Companies are not currently obliged to report on the content used to feed generative AI models. From 2 August, tech firms will have to provide a summary of data used in AI models, but details are still being decided. Voss said the latest draft rules on the summary from the EU's AI office were 'not sufficiently detailed' to protect artists.
In a letter to the Commission this week, 15 cultural organisations said the draft summary proposals failed to ensure transparency. More generally, the organisations wrote: 'The impact of AI on the authors and performers we represent constitutes a systemic risk.'
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Romeijn, who is on the board of the European Composer and Songwriter Alliance, which co-signed the letter, said she had been told by senior EU officials to take tech companies to court to preserve her copyright. 'Who is actually going to take a big tech company to court?' she asked, citing cost, time, loss of earnings and potential damage to reputation. 'It is just a very impractical way of implementing legislation.'
The European Council of Literary Translators' Associations, which represents 10,000 translators in 28 countries, said it was very concerned about copyright and AI. 'Books are written by human authors and must be translated by human translators to preserve the artistic virtues of the literary work,' it said in response to questions. 'We firmly believe that authors, performers and creative workers must have the right to decide whether their works can be used by generative AI and, if they consent, to be fairly remunerated.'
In December, mostly the same cultural organisations wrote to the European Commission vice-president Henna Virkkunen to raise concerns that EU law 'fails to adequately protect the rights of our creative communities and the value of their cultural works'. On Monday, nearly 11 weeks later, the commission had not replied, according to three signatories.
'So far it does not seem that she [Virkkunen] has an ear or an understanding – I am sorry to say that – of the whole value chain and how it works in the cultural and creative industries,' said George.
Brando Benifei, an Italian Social Democrat who jointly represented the European parliament in negotiations on the AI Act, contested the view that creatives were unprotected. He described the AI Act as 'a very strong text' that had the potential to create 'a very large rebalancing of power between the developers and the rights holders'.
From 'day one' after the law was voted in, there had been an effort 'to dilute and to interpret in a minimalistic way the provisions', he added. '[This] has been the obsession of the big tech companies because it is probably the part of the AI act that can be most impactful in terms of costs for the big generative AI companies.'
A European Commission spokesperson said it was 'closely monitoring the global challenges that AI technology development poses to the creative industry' and was 'committed to maintaining a balanced approach that fosters innovation while protecting human creativity'.
'We are assessing the need for additional measures, outside the AI framework,' the spokesperson added, declining to say whether this meant new legislation.
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The Guardian
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‘Nobody wants a robot to read them a story!' The creatives and academics rejecting AI – at work and at home
The novelist Ewan Morrison was alarmed, though amused, to discover he had written a book called Nine Inches Pleases a Lady. Intrigued by the limits of generative artificial intelligence (AI), he had asked ChatGPT to give him the names of the 12 novels he had written. 'I've only written nine,' he says. 'Always eager to please, it decided to invent three.' The 'nine inches' from the fake title it hallucinated was stolen from a filthy Robert Burns poem. 'I just distrust these systems when it comes to truth,' says Morrison. He is yet to write Nine Inches – 'or its sequel, Eighteen Inches', he laughs. His actual latest book, For Emma, imagining AI brain-implant chips, is about the human costs of technology. Morrison keeps an eye on the machines, such as OpenAI's ChatGPT, and their capabilities, but he refuses to use them in his own life and work. He is one of a growing number of people who are actively resisting: people who are terrified of the power of generative AI and its potential for harm and don't want to feed the beast; those who have just decided that it's a bit rubbish, and more trouble than it's worth; and those who simply prefer humans to robots. Go online, and it's easy to find AI proponents who dismiss refuseniks as ignorant luddites – or worse, smug hipsters. I possibly fall into both camps, given that I have decidedly Amish interests (board games, gardening, animal husbandry) and write for the Guardian. Friends swear by ChatGPT for parenting advice, and I know someone who uses it all day for work in her consultancy business, but I haven't used it since playing around after it launched in 2022. Admittedly ChatGPT might have done a better job, but this piece was handcrafted using organic words from my artisanal writing studio. (OK, I mean bed.) I could have assumed my interviewees' thoughts from plundering their social media posts and research papers, as ChatGPT would have done, but it was far more enjoyable to pick up the phone and talk, human to human. Two of my interviewees were interrupted by their pets, and each made me laugh in some way (full disclosure: AI then transcribed the noise). On X, where Morrison sometimes clashes with AI enthusiasts, a common insult is 'decel' (decelerationist), but it makes him laugh when people think he's the one who isn't keeping up. 'There's nothing [that stops] accelerationism more than failure to deliver on what you promised. Hitting a brick wall is a good way to decelerate,' he says. One recent study found that AI answered more than 60% of queries inaccurately. Morrison was drawn into the argument by what he would now call 'alarmist fears about the potential for superintelligence and runaway AI. The more I've got into it, the more I realise that's a fiction that's been dangled before the investors of the world, so they'll invest billions – in fact, half a trillion – into this quest for artificial superintelligence. It's a fantasy, a product of venture capital gone nuts.' There are also copyright violations – generative AI is trained on existing material – that threaten him as a writer, and his wife, screenwriter Emily Ballou. In the entertainment industry, he says, people are using 'AI algorithms to determine what projects get the go-ahead, and that means we're stuck remaking the past. The algorithms say 'More of the same', because it's all they can do.' Morrison says he has a long list of complaints. 'They've been stacking up over the past few years.' He is concerned about the job losses (Bill Gates recently predicted AI would lead to a two-day work week). Then there are 'tech addiction, the ecological impact, the damage to the education system – 92% of students are now using AI'. He worries about the way tech companies spy on us to make AI personalised, and is horrified at AI-enabled weapons being used in Ukraine. 'I find that ethically revolting.' Others cite similar reasons for not using AI. April Doty, an audiobook narrator, is appalled at the environmental cost – the computational power required to perform an AI search and answer is huge. 'I'm infuriated that you can't turn off the AI overviews in Google search,' she says. 'Whenever you look anything up now you're basically torching the planet.' She has started to use other search engines. 'But, more and more, we're surrounded by it, and there's no off switch. That makes me angry.' Where she still can, she says, 'I'm opting out of using AI.' In her own field, she is concerned about the number of books that are being 'read' by machines. Audible, the Amazon-owned audiobook provider, has just announced it will allow publishers to create audiobooks using its AI technology. 'I don't know anybody who wants a robot to read them a story, but I am concerned that it is going to ruin the experience to the point where people don't want to subscribe to audiobook platforms any more,' says Doty. She hasn't lost jobs to AI yet but other colleagues have, and chances are, it will happen. AI models can't 'narrate', she says. 'Narrators don't just read words; they sense and express the feelings beneath the words. AI can never do this job because it requires decades of experience in being a human being.' Emily M Bender, professor of linguistics at the University of Washington and co-author of a new book, The AI Con, has many reasons why she doesn't want to use large language models (LLMs) such as ChatGPT. 'But maybe the first one is that I'm not interested in reading something that nobody wrote,' she says. 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My view is, it's a waste of time if you let it try and do too much for you.' Accurate or not, he also worries that if he becomes too reliant on AI, his coding skills will atrophy. 'The AI enthusiasts say, 'Don't worry, eventually nobody will need to know anything.' I don't subscribe to that.' Part of his job is to write research papers and grant proposals. 'I absolutely will not use it for generating any text,' says Royle. 'For me, in the process of writing, you formulate your ideas, and by rewriting and editing, it really crystallises what you want to say. Having a machine do that is not what it's about.' Generative AI, says film-maker and writer Justine Bateman, 'is one of the worst ideas society has ever come up with'. She says she despises how it incapacitates us. 'They're trying to convince people they can't do the things they've been doing easily for years – to write emails, to write a presentation. 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Generative AI is like a blender – you put in millions of examples of the type of thing you want and it will give you a Frankenstein spoonful of it.' It's theft, she says, and regurgitation. 'Nothing original will come out of it, by the nature of what it is. Anyone who uses generative AI, who thinks they're an artist, is stopping their creativity.' Some studios, such as the animation company Studio Ghibli, have sworn off using AI, but others appear to be salivating at the prospect. In 2023, Dreamworks founder Jeffrey Katzenberg said AI would cut the costs of its animated films by 90%. Bateman thinks audiences will tire of AI-created content. 'Human beings will react to this in the way they react to junk food,' she says. Deliciously artificial to some, if not nourishing – but many of us will turn off. Last year she set up an organisation, Credo 23, and a film festival, to showcase films made without AI. 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'I am a technologist,' she says, 'but I believe that technology should be built by communities for their own purposes, rather than by large corporations for theirs.' She also adds, with a laugh: 'The Luddites were awesome! I would wear that badge with pride.' Morrison, too, says: 'I quite like the Luddites – people standing up to protect the jobs that keep their families and their communities alive.'
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Trade Secretary to push for timeline on US tariff exemption
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Trade Secretary to push for timeline on US tariff exemption
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