The Register of Copyrights Shira Perlmutter testified before the Senate Committee on Oversight. She previewed what the Copyright Office’s Report will cover about the question whether training AI models with copyrighted works without licenses from the copyright owners is fair use.
We’ve excerpted below the exchanges bearing on fair use, although most of the first round of questions did focus on fair use.
Excerpts from first round of questions that related to fair use [*machine generated lightly edited for grammar]
Senator Coons
We look forward to that ongoing technical advice. One of the areas you’re next looking at is whether training an AI model on copyrighted works constitutes fair use. Is there anything you’re comfortable sharing with us about that at this point and is there a role for Congress in addressing that issue?
Register Perlmutter
I would say the most controversial of all the areas that we’re addressing in the report and the one that the majority of the comments did address. It is of course also the area where there are now I believe about three dozen court cases pending several of them class actions brought by copyright owners from various different sectors. There are not yet any Court any decisions addressing the critical fair use issue. But I’m sure they will start to come in the next year or so.
What I will say is that of the comments that we received that did address the issue, by far the majority of them expressed the opinion that the existing law in the United States was adequate to deal with this issue and that was primarily the fair use doctrine. Of course views diverged strongly on whether what type of use of copyrighted works in the development of AI systems and tools constitute fair use and what types of uses do not qualify as fair use. We will be exploring that thoroughly in our report but it is interesting that, at present, again, the vast majority of comments said there was not a need to change the law. It was a question of how the law should be applied. I imagine however that once Court decisions start being issued we may start to see parties come to Congress asking for some change.
Senator Coons
Well, in the event that happens, which I would expect, we will look for your input and the very talented folks on your staff.
Senator Tillis
You were talking about the comments. I was going to ask you about the theme you said about 10,000 comments have come in and you’re saying there’s a lot [of] “we don’t need anything we need we don’t need anything new we just need the fairness Doctrine to be applied.” Do you have some sense of where they’re coming from? I mean I’m in the on Banking Committee we’re talking about crypto when I found when we get messages back on nothing to see here it tends to be from people that are heavily invested in crypto. I mean do we know much about the comments to know if this is a kind of defensive mechanism up against people that are you know betting future business plans on it it’s a broad swath? How would you characterize the feedback now and the “nothing to see here just let the courts take care of the application”?
Register Perlmutter
Yeah, it’s interesting because the view that fair use is the appropriate doctrine to handle this is being expressed by what you might say both sides or maybe all sides. On the one hand, I would say the technology companies and some consumer groups and public interest groups are saying this should be fair use—if it is if it were to be held not to be fair use, it would not be possible to develop this technology given the volume and variety of copyrighted works that are used in training. And they are pointing to a line of cases that looks at the use of copyrighted works internally for purposes of analysis and comparing the training of AI models to those cases. On the other hand, the copyright owners are saying it cannot be fair use to take everything that we’ve produced in a lifetime of through a lifetime of training and inspiration and to use it as raw material to create content that will compete with us in the marketplace. So both of them are relying on fair use but they are reaching opposite conclusions. So that’s what we will be—our goal in the report, I would say, is to provide a framework for analysis to explain how the fair use doctrine and the various factors the courts must consider should be approached in the context of different fact patterns.
Senator Tillis
That was going to be my follow [up], what precise role, what are you going to put out there to give, you know, reference material to Good Hope decisions that are going to go through?
Minimally, what kind of instruction what kind of role can you play on an immediate basis?
Register Perlmutter
Well, I think that’s the role. We’re looking at it’s very difficult to say that an entire category of activity is fair use or isn’t because it is a completely fact specific.
Senator Tillis
See I think I think a part of the reason why you may have a broad spectrum saying let’s see what the courts are doing is because they’re afraid of what Congress may do and so a part of what we have to do is be very educated we have to have a light-handed approach. I believe that AI is going to unleash an opportunity for innovation this country has never seen and really even set us apart make us more of a leader than we already are globally. We don’t want to have a chilling effect on it.
Senator Welch
Thank you very much. Thank you, Chairman, Ranking Member. I want to follow up a bit on the questions that the chairman was asking about creative material. It’s really tough for many artists and if their material is used to train AI. My view is that they should be notified of that. My view is that they should be compensated for that but there’s no way in which they can actually get the information. And I’m considering legislation that would make it more possible for them to do that. But, first of all, in terms of your experience and your position, are you getting expressions of concern from the creative community about the use of their work to train AI and their inability to have any way of determining whether in fact that’s the case?
Register Perlmutter
Yes, absolutely, I mean certainly concerns about the use of their work to train AI and that’s where we will be talking about the fair use analysis in our upcoming report. But also the transparency issue because the copyright community, the copyright owners are expressing concern that unless they know if their work was used to train they can’t do anything about it whether it’s to license or to bring a lawsuit.
Senator Welch
And that’s true.
Register Perlmutter
That’s true. So this is an area of course that touches right other interests besides copyright as well there’s a lot of reasons why transparency is important in AI training.
Senator Welch
And what’s the push back on that?
Register Perlmutter
My understanding of the pushback is that it’s really more about what kind of transparency how much and to what degree of detail and how wouldit be provided and I know that discussion has been going on now for some time in the as well—
Senator Welch
This is pretty simple your work your creative work it’s used in training or it’s not right. So how much more transparency do you need than the train the company training its AI model to ask them the question you use my song?
Register Perlmutter
Yeah my understanding is that one of the issues is the extent to which it’s possible to reproduce to identify exactly which works were used in which training model.
Senator Welch
So you know there’s something really wonderful about this AI like knows everything right except that which the artist needs to know to determine whether their work has been used to benefit AI. So can we take seriously this assertion by the AI folks that know everything, that they don’t know what work they’ve used in order to train their wonderful AI model?
Register Perlmutter
Well, I do think it’s important to have that level of transparency to allow copy owners to make decisions about what they want to do.
Senator Welch
But we’re in a new world here in a sense because it was never contemplated with the fair use doctrine that there was such a thing as AI that would you utilize vacuum up not only information but creative content from artists who are always getting squeezed with the use of their model. So it sounds like we do need some explicit protection for artists if their work is used to train AI models?
Register Perlmutter
Well I would, I would differentiate between the use of the works in the training and transparency about what works are used. So I think the fair use doctrine is flexible enough to deal with the training, but transparency is an additional issue.
Senator Welch
In order to have the fair use doctrine interpreted and applied to a concrete situation then there has to be transparency so that the court or the decision maker knows the initial question this creative content has been utilized for the benefit of the AI algorithm?
Register Perlmutter
Yeah I mean not just the fair use doctrine but the entire infringement analysis could only take place if you know what work works are used.
Senator Blackburn
Thank you, Mr. Chairman and Miss Perlmutter. I enjoyed our conversation yesterday and thank you for taking the time to come by. And as my colleagues have said the work you do is important to my fellow Tennesseans that are songwriters and artists and authors and musicians. Your office is vitally important. I will say also to a lot of our healthcare innovators that have patents it is vitally important and it’s why we are seeking to work on this issue and protect the constitutional right that our innovators have to benefit from their creations. I remind them all the time: Article 1 Section 8 Clause 8 is about them and we should be protecting that.
I want to stay with the fair use question for just a minute and I appreciated your report we touched on this yesterday and I appreciated the opportunity to submit my comments on the topic during your notice of inquiry last year and I’ve said before and this is something we say a good bit in Nashville fair use is a fairly useful way to steal my creation.
And we’ve we’ve seen this happened a lot in the music industry first and subsequently into others and I addressed the and argued for a narrowed application of that standard in the Warhol v. Goldsmith case which as you know sided with the original photographer in that case. And I I think that having that clear understanding is vital so coming a different way from my colleague’s question when we talk about this and you talk about this unlicensed AI ingestion of copyrighted works then should that or should that not be considered under a fair use doctrine?
Register Perlmutter
Well the fair use doctrine applies as long as you have an initial act of reproduction. And one of the beauties of the fair use doctrine is even though of course it was developed at a time before the existence of AI or certainly generative AI, it is flexible enough to apply to new technologies So the doctrine applies. How you apply it though is a different question.
Senator Blackburn
You would apply it and that and I think that’s an important distinction.
Register Perlmutter
Yes.
Senator Blackburn
Yes indeed it does apply because of that flexibility and therefore that gives standing to these original creators to go after bad actors. And of course with the No Fakes Act that Senator Coons and Senator Tillis and Senator Klobuchar and I have, this is something that would provide that extra protection for these creators so whether it’s copying their voice or copying their works they have a legal standing and a right to defend themselves in their creation.
Register Perlmutter
Which is important because copyright law doesn’t extend to protecting images and voices in themselves so I agree that’s important. And also just to clarify when I say fair use applies I mean the doctrine is available to analyze that situation not that we’ve concluded that something any particular context is fair use.
Senator Blackburn
Yes, as you said it has flexibility.
Senator Hirona
Thank you Mr Chairman. It’s very clear that when we deal with AI and the impact that it has on just about everything in every every sphere it’s really difficult to figure out what kind of regulations there should be but it does occur to me that there are other countries that you know are having the same issues and one of the questions I’d like to ask you after I make some initial comments is how are these other countries dealing with this issue.
Thank you for joining us. I know that you are tackling this really important issue and I and I just read a New York Times article was in January “the sleepy copyright office in the middle of a high stakes clash over AI.” It was quite an informative article mainly you know talking to you but I know that you and your team are working on reports on the relationship between artificial intelligence and copyright and this is a topic as I mentioned of great interest and concern to me in this committee AI is a powerful tool that should be used to enhance and support creativity but we have to make sure that we don’t sacrifice our artists, authors, actors, musicians, singers, songwriters, journalists, and other creative professionals our copyright system exists to incentivize and compensate these creative professionals and the framers of our constitution cared so much about supporting the creativity of all these individuals that they actually put protecting copyright in our Constitution in the Intellectual Property Clause. So what you’re doing is really important. Getting back to how are other countries dealing with the AI issue and the creative community in their countries?
Register Perlmutter
I would say that other countries are like us examining the issue trying to figure out the right way forward. There are a few countries that have enacted very specific exceptions in their copyright laws for text and data mining, which they either have said they will apply or there is speculation that will be applied to generative AI training. But these these exceptions have not yet been tested in court and we don’t know how the courts will apply them and the extent to which the results will be different from our fair use doctrine.
I will say there’s a lot of conversations going on internationally we’re talking to our counterparts. Everyone is sharing information the World Intellectual Property Organization is holding regular what they call online conversations about the new technology issues and they’re all focused on generative AI right now.
Senator Hirona
Considering that other countries don’t have to deal with I don’t think the issue of First Amendment freedom of speech considerations is that another a factor for us to consider when we’re talking about regulating and making certain requirements of disclosure and compensation?
Register Perlmutter
It it could be other countries are concerned about free expression and do have some protections for it but they don’t have the equivalent of our First Amendment.
Senator Hirona
So where are you in working on this report when will the report be due and and I understand that you have gotten thousands and thousands of comments from, people?
Register Perlmutter
10,000 and I will say it’s not the maximum we’ve ever received we got more for our study on Section 512 of the DMCA a few years ago but a lot of those were duplicates this these were 10,000 substantive individual comments so it’s taken a lot of analysis and a lot of review.
So as you know the first part of the report was issued the end of July we have been trying to set and follow our own ambitious deadlines because we know there’s a lot of interest we know these are important issues. So our current goal is to get the other two sections out by the end of the year. We are working hard toward that goal but to me what is most important is to make sure that we are accurate and thoughtful and produce a high quality report that will be useful to you and to the courts.
Senator Hirona
Well my best because whatever you all come up with I think we’re going to see litigation in this space and so we shall proceed. Thank you very much. Mr Chairman.