Abstract:
So far, the discussions surrounding AI and copyright / related rights have mainly focused on the training/input phase and issues such as the lawfulness of unlicensed text and data mining. Insofar as the output phase is concerned, the discourse has mostly revolved around protectability considerations. But what happens if an AI-generated output "resembles" input data? Can this raise questions of liability? Empirical research does indeed show that large generative AI models may memorize training data which may include or consist of copyright-protected works and other protected subject-matter, or parts thereof. When prompted appropriately, these models may produce outputs that closely resemble such works and other subject-matter.
Following an introduction covering the main issues facing AI from an international and comparative copyright perspective, the talk will attempt to answer the following questions: Under what conditions may the resemblance between pre-existing works or subject-matter used in the training and an AI-generated output be regarded as an actionable reproduction? Who would be liable for the doing of such acts of reproduction: would it be solely the user of the AI model inputting the prompt resulting in the infringing output or could it be that the developer and provider are also to be deemed liable? If prima facie liability is established, who may benefit from exceptions under copyright / related rights, and under what conditions?
While it is clear that each case will need to be assessed on its own merits and facts and that no sweeping conclusions should be drawn, the analysis will ultimately show that the generative AI output phase raises several issues under copyright and related rights. If AI is to develop in a sustainable manner and in compliance with the principle that a fair balance is struck between competing rights and interests, then relevant issues related to the output generation phase deserve more careful scrutiny, whether it is in the context of risk assessment and compliance, licensing initiatives, or in contentious scenarios.
Speaker:
An EUI alumna (PhD 2012), Eleonora Rosati is a Full Professor of Intellectual Property Law at Stockholm University and Of Counsel at Bird & Bird. She holds guest/visiting positions at several other institutions, including Universidade Católica Portuguesa, Queen Mary University of London, KDI School of Public Policy and Management, CEIPI-Université de Strasbourg, Trinity College Dublin, EDHEC Business School, Glion Institute of Higher Education, and Centre for Intellectual Property and Information Law - University of Cambridge.
Eleonora is Editor of the Journal of Intellectual Property Law & Practice (Oxford University Press), long-standing contributor to and editor of The IPKat, and Co-Founder of Fashion Law London. Eleonora regularly prepares technical briefings and expert opinions and delivers talks at the request of inter alia international organizations and EU institutions and agencies, as well as national governments and professional bodies and organisations. She has received multiple accolades and prizes for her work in the IP field and has been featured in prominent media outlets, including inter alia The New York Times, The Guardian, Financial Times, CNN, BBC, and Politico.