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The debate between AI memorization versus learning of intellectual property-protected works is likely to be one of the main legal challenges of 2024 with their increased exploitation by generative artificial intelligence systems.
As 2023 is about to end, I reflect on my recent visit to Naples, my hometown, where I shared with my Italian-Canadian children the rich cultural heritage of this historic city. Our journey took us to San Gregorio Armeno, a street globally celebrated for its nativity scene artisans. This experience unexpectedly paralleled the ongoing debate about AI’s role in creativity and intellectual property, a topic that is exponentially becoming popular because of recent disputes.
Artistry in Naples: Can Human Creativity Be Copied?
In Naples, I met Vincenzo and Luciano Capuano, the fourth-generation nativity scene masters. Their approach to artistry is instinctual. Without any predefined plans, they let their intuition and experience guide their hands, creating pieces that are just unique. No Capuano’s nativity scene is identical to another.
This method of creation, relying on human instinct and cultural heritage, raises questions about the limits to which an artificial intelligence system can potentially “copy” other works.
The dispute between a prominent global newspaper and a technology giant over AI’s use of copyright-protected materials for learning purposes has brought to light critical issues in the intersection of artificial intelligence and intellectual property rights. The core question is whether
AI is memorizing existing works,
or just learning from them as any human might do.
Generative artificial intelligence doesn’t reproduce the material provided to that but creates new works, considering the material it learned.
Going back to the parallel with nativity scene artisans, can AI ever compete with the instinct of artists like Vincenzo and Luciano Capuano in creating a nativity scene? Would the disclosure of the source/material from which AI learned the skills, enabling it to provide the requested information or create the work, solve any legal issues? Under such circumstances, would generative AI be treated like a search engine and not be subject to intellectual property rights limitations?
Legal Implications Around Copyright-Protected Material After the AI Act
Currently, there’s a significant focus on the AI Act’s copyright disclosure obligation, with worries that it may further demonize artificial intelligence’s role in the creative industries. However, this scenario overlooks the potential of exploring the text and data mining (TDM) copyright exemption provided by the EU Copyright Directive. This exemption allows, with some limitations, “any automated analysis technique aimed at analyzing text and data in a digital format to generate information including, but not limited to, patterns, trends, and correlations.”.
The EU legislators purposely did not clarify the scope of the TDM in the AI Act since there is a tendency to keep separate different pieces of legislation. However, since the exemption is new, it has not been tested so far before the courts. Besides, authorities like the Garante, the Italian data protection supervisory authority, are questioning websites on the implementation of measures preventing web scraping (Read on the topic “AI Scrutinized (again): Italian Privacy Authority Probes Web Scraping Practice”). As such, the exemption might place a diligence obligation on copyright holders.
A Balance Between Human Artistry and AI Innovation
The introduction of legal guardrails could enhance the applicability of the text and data mining copyright exemption, balancing the interests of copyright holders with the innovative potential of artificial intelligence. This approach might provide a framework where AI can be used as a tool for creativity while respecting the originality and ownership of human creators.
At this stage, these questions remain: Can AI match the instinctual artistry of creators like Vincenzo and Luciano Capuano? And, importantly, how do we balance the innovative potential of AI with the rights and creativity of human artists?
As we step into 2024, these questions will be at the forefront of legal debates surrounding AI. The answers we find will shape the future of creativity and intellectual property in the age of artificial intelligence.
On the same topic, you can read the article “Can generative artificial intelligence rely on the copyright text and data mining (TDM) exception for its training?”. Also, if you want to know more about the Capuano brothers, click HERE.