Gov’t action fails, only self-regulation through the market solves AI issues. Negotiations are fastest and sidestep the need for regulations. The courts can fill gaps where necessary

US: Efforts in the Three Branches and the Marketplace to Resolve the AI and Copyright Dilemma Executive Branch and Copyright Office Efforts on AI and Copyright Here in the United States, in August 2023, the US Copyright Office published a request for comments on the question of how the office should address governance challenges posed by the emergence of generative AI. Among other issues, the Copyright Office requested comment on “whether legislative or regulatory steps” are needed to address “the use of copyrighted works to train AI models.” The comment period for this inquiry closed on December 6, 2023. The August 2023 inquiry, along with previous efforts by the Copyright Office, are intended to provide the material for future legislative reforms. Policy proposals on AI and copyright made on the basis of the Copyright Office’s inquiries may come as early as summer 2024. President Joe Biden’s October 2023 “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” directs the Copyright Office to “issue recommendations to the President on potential executive actions relating to copyright and AI… including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.” These recommendations are to be issued to the President by the end of July 2024 at the latest. Congressional Proposals on AI and Copyright In parallel with the executive branch and the Copyright Office, lawmakers in Congress are wrestling with the copyright issues posed by AI. On December 22, 2023, Representatives Don Beyer (D-VA-8) and Anna Eshoo (D-CA-16), respectively the Vice Chair and Co-Chair of the Congressional AI Caucus, introduced the AI Foundation Model Transparency Act. Under the act, developers of certain AI models may be required to disclose the sources of data used to train their models, including “information necessary to assist copyright owners or data license holders with enforcing their copyright or data license protections...” As members and committees propose piecemeal AI bills, Congressional leadership has been working towards the goal of comprehensive AI legislation. From September to December 2023, a bipartisan group of senators led by Majority Leader Chuck Schumer (D-NY) hosted a series of senate-wide “AI Insight Forums,” or closed-door meetings with a variety of stakeholders on pertinent governance issues raised by AI. The purpose of these forums is to develop expertise within the Senate needed to produce effective bi-partisan AI legislation within “months.” On November 29, 2023, Senator Schumer hosted a forum on “Transparency, Explainability, Intellectual Property, and Copyright.” In his opening statement for the forum, the senator asserted that “there is a role for Congress to play to promote transparency in AI systems and protect the rights of creators.” Will the Courts Decide the Issue Under Current Law? On December 27, 2023, the New York Times sued leading generative AI companies for “unlawful use of The Times’s work to create artificial intelligence products that compete with” the publication. The complaint alleges that the defendants used “Times content without permission to develop their models and tools.” According to the complaint, after a months-long attempt to reach a negotiated agreement stalled, the publication filed suit. The New York Times argues that the defendants’ use of “The Times’s content without payment to create products that… closely mimic the inputs used to train them” is not protected by fair use and therefore constitutes copyright infringement. Given the high profile of both the plaintiff and defendants, some experts have predicted that this case, if tried, will eventually be appealed to the Supreme Court. Regardless of whether this ends up being the case, the outcome of this suit could have significant implications for not just the news industry, but all creators whose content has been used to train AI models. In the absence of regulation from the executive or legislative branch, a decisive ruling on this or a related case may set industry standards regarding the use of copyrighted works as training data for AI models—or be the catalyst for codifying a set of standards. Self-Regulation as the Solution? Aside from government agencies, Congress, and the courts, the ultimate solution to the issues posed by the use of copyrighted works as AI training data may come from the marketplace. Prior to filing their suit, the New York Times engaged with generative AI companies in months of negotiations over the use of its content. Had these negotiations succeeded, the resulting arrangement could have been used as a model for other publishers and content creators. As the New York Times suit progresses, there is nothing preventing marketplace agreements (including from the litigants). The emergence of AI is moving at warp speed. Regulatory, legislative, and litigation-based solutions all move at a slower pace. In all likelihood, the longer it takes for regulators to create and implement public policy solutions to this issue, the more likely it is that creators and AI developers will come to their own arrangements.