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Artificial intelligence (“AI”) has become a major public policy issue in Washington across a range of industries. The copyright community has also been focused on AI policy, most notably over the issues of training AI models on copyrighted works and the copyrightability of generative AI. This Article focuses on AI training.
Copyright issues surrounding training are currently the subject of significant litigation in U.S. district courts, predominantly the Southern District of New York in which the fair use defense has been raised by AI companies. Copyright issues surrounding AI training may very well reach the U.S. Supreme Court. There is certainly enough money at risk on both sides of the issue to make it likely that at least once of the many current cases will eventually be heard by the Court. If the Supreme Court determines that a license is not generally required, the licensing question (and the basis for this Article) ends the day such a decision is announced. If, however, the Supreme Court determines that a license is often required, Congressional action to enable either collective or compulsory license may be needed in certain circumstances even though direct licensing has already occurred and will no doubt continue.
From 2004 to 2007, I served as copyright counsel to then-House Judiciary Charmain James Sensenbrenner of Wisconsin during which time I led weekly Congressional negotiations over two copyright bills. The first bill was an update to the Section 115 compulsory music licensing system. The legislation, titled the Section 115 Reform Act, was designed to modernize a paper-based licensing system for the digital music services era. The second bill, titled the Orphan Works Act, was a copyright industry-wide bill to address the longstanding orphan works licensing problem on a work-by-work basis. Neither bill was signed into law by Congress, although an updated version of the Section 115 Reform Act later became the now-enacted Music Modernization Act of 2018. One could also say that the Music Modernization Act proved that Congressional staff never leave since I was the lead negotiator on that bill as well. Although none of these three bills had anything directly to do with AI, Congress often builds upon what it has previously debated or enacted as a basis for future legislation. Thus, it is possible that the prior music licensing and orphan works bills could provide some basis for AI licensing legislation.