The RightsTech AI Summit at Digital Entertainment World 2024 covered a range of technical and legal issues over the course of seven panels with a focus on generative AI, copyright and licensing. The event, held at UCLA, featured speakers from areas including entertainment, data management, legal and academia. Among the key takeaways: fair use is expected to become a defense in AI cases, data used to train AI will likely become a legal issue in regards to licensing agreements, we may soon need copyright law that protects an artist’s style, Big Tech lobbying efforts are becoming a concern, and states are outpacing Washington on AI regulation.

UC Berkeley Professor of Law Pamela Samuelson expects fair use to be a major defense in the 16 generative AI cases currently before U.S. courts that she is following. Most are related to using publicly-accessible scraped content in training data without the IP owners’ permission.

In most of these cases, Samuelson does not think the IP owners will be able to convince the court that they will experience actual harm or face a meaningful chance of harm through the unlicensed use of openly available content from the web for AI training purposes.

She said this is analogous to the Google books case, in which Google scanned libraries of protected books without permission. The court agreed that Google simply analyzed the text and did not reproduce the books themselves.

Samuelson does, however, feel that The New York Times has a strong case against OpenAI, since NYT has a marketplace for licensing their content already established. Samuelson noted that after the AI is trained another dataset could be used for the released AI product instead of the training data set. Because none of the unlicensed data in the training data set would be present in the released product, she claims that no harm would have been done.

During the following panel, Microsoft Responsible AI Product Lead Sneha Deo made the point that copyright law covers specific works but does not protect an artist’s style. Artists work to create their own unique style, public persona and identity. There should be some way to protect style, since that has become the artist’s core value proposition in both the intellectual and monetary marketplace.

In the Update on AI Regulation and Legislation segment, Sophie Goossens, partner at Reed Smith LLP, noted that states are moving faster than the federal government on a number of aspects of AI regulation. California may lead the nation in this area.

Amy Isbell, SVP of public policy and government relations for Universal Music Group noted that, in the last year, AI companies have flooded DC with money and lobbyists. At the recent hearing with social media platform heads, legislators complained to them about their overwhelming lobbying effort on Capitol Hill.

Both the EU AI Act and President Biden’s Executive Order on AI call for labeling output that contains AI-generated “synthetic” content. Isbell noted that musicians have been using drum machines for decades. When does content become synthetic? she asked. The U.S. Patent and Trademark Office’s current view is that the portion of a submission that contains AI-generated content is not protectable by copyright. How synthetic content is defined will directly impact the IP landscape.

The Copyrighting Generative AI panel spent a good deal of time discussing the Rose Enigma case. The author of the graphic novel “Rose Enigma” wrote the text, produced prompts that instructed an AI to create complementary graphics, and then refined the prompts and made hand-drawn modifications to the graphics.

The artist’s lawyers claim that her process demonstrates that she exercised creative control over the final work even if an AI was involved. Panelist Josh Love, partner at Reed Smith LLP, made the point that if the Patent Office denies the author’s copyright claim, then by default the Office is placing the art into the public domain where platforms can monetize it without compensating the artist. They hope the case, which is pending, will provide clarifying education to the Patent Office.

Other interesting points were made during the day:

• Michael Grecco, founder of The American Society for Collective Rights Licensing said that by placing content in a blockchain before releasing it not only will provenance be maintained, but there will be clear documentation of original ownership if someone else tries to claim authorship.
• Lori Fena, co-founder of Personal Digital Spaces, proposed using an AI “similarity search” approach to track down infringing content.
• Josh Love said creatives want the three C’s: Consent, Control and Compensation.
• Sneha Deo described her work with the Montreal AI Ethics Institute, an international non-profit equipping citizens concerned about artificial intelligence and its impact on society to take action.