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Mendis 24 – Professor of Intellectual Property and Innovation Law and Director of the Centre for Intellectual Property Policy and Management at Bournemouth University.
Dinusha Mendis, “How a New York Times copyright lawsuit against OpenAI could potentially transform how AI and copyright work,” The Conversation, 01-17-2024, https://theconversation.com/how-a-new-york-times-copyright-lawsuit-against-openai-could-potentially-transform-how-ai-and-copyright-work-221059
The defence available to OpenAI is “fair use” under the US Copyright Act 1976, section 107. This is because the unlicensed use of copyright material to train generative AI models can serve as a “transformative use” which changes the original material. However, the complaint from the New York Times also says that their chatbots bypassed the newspaper’s paywalls to create summaries of articles.
Even though summaries do not infringe copyright, their use could be used by the New York Times to try to demonstrate a negative commercial impact on the newspaper – challenging the fair use defence.