William Van Caengem & Kana Nakano: AI free-for-all would decimate Australia’s cultural output

There’s nothing fair about the Productivity Commission’s proposal to carve out an exemption for big tech to train AI on the work of Australian artists and creators.

Initially canvassed in the Commission’s interim report Harnessing data and digital technology, the proposal rightly drew sharp backlash from the creative community.

A Senate committee is now investigating the issue and at a recent hearing the Productivity Commission maintained it was “not realistic” to prevent Australian content from being used to train AI models being built overseas.

Artists giving evidence at the hearings fear this position will decimate the arts and creative industries within a decade.

As experts in copyright law, our view is that offering up free access to creative works and literary expressions under the guise of “fair dealing” is anathema to everything the legislation was designed to protect.

Introducing a new fair dealing exemption for data and text mining, ostensibly to enable AI’s productivity potential, would effectively allow Large Language Models to be trained on Australian copyright protected works without the creators’ agreement and with no compensation.

Any such move effectively reduces the creative endeavours of musicians, artists, authors and journalists to mere “datasets.”

Not only is this deeply offensive, it goes against the core principles of the legislation itself.

The argument that data and text-mining of literary works is “non-expressive use” — that it is only the information and data that is being used — is illogical.

Literary works protected by copyright are more than just an underlying idea or information. The law is specifically designed to protect the original and creative form of literary expression of particular ideas and information.

It’s this precise expression of information and data in a particular form of words that is consumed by AI models — and what makes it so effective at training them.

No wonder the tech giants are so keen to get their hands on it.

An exemption that enables the use of literary works without compensation serves to benefit the big tech companies that develop and own these large AI models and monetise their use.

There is absolutely no clear reason why tech companies should obtain this benefit for free, even if their products are useful to the public at large, or benefit society.

The availability of authors’ works also benefit society as a whole, but they aren’t made available to be copied, performed or communicated for free.

If the fair dealing exemption for text and data-mining were to be introduced, it would need to be very prescribed and appropriately restricted by what constitutes “fair.”

Although, in our view, failing to compensate creatives for their work, or even seek their authority to use the material, can never be considered fair.

Allowing AI companies to freely use authors’ skills in literary expression to train LLMs that compete directly with those same authors’ own skills would be a perverse outcome.

Protecting creatives also wouldn’t come at the expense of Australians accessing AI — the Productivity Commission’s own report notes that AI models would continue to be available and used here whether the exemption is provided or not.

A better, and fairer, approach would be to create a licensing scheme that allows the works to be used only with the authorisation of, and fair compensation to, the creators and copyright owners.

AI companies would argue that seeking licenses from individual copyright owners creates a serious barrier to entry, but a collective licensing scheme could solve that problem.

The Commission could also consider the potential negative impact on productivity – giving big tech free access would be a strong disincentive to the creators of literary works, in industries where it’s often hard enough already to make a living.

We need to decide now whether the economic gains from AI are worth destroying the fabric of Australia’s creative culture.

Professor William Van Caengem and Assistant Professor Kana Nakano are intellectual property law experts at Bond University