Re: "Creators call for action on AI copyright exceptions"

Edward – what you write below is a HUGE generalization of companies involved in Generative AI.  Many companies, such as mine (Adobe) have taken very significant steps to ensure that our solutions are responsible.  See https://blog.adobe.com/en/publish/2023/03/21/responsible-innovation-age-of-generative-ai for details from our Chief Trust Officer.

Leonard

From: Edward Hasbrouck <ehasbrouck@nwu.org>
Date: Wednesday, August 2, 2023 at 11:56 AM
To: public-tdmrep@w3.org <public-tdmrep@w3.org>
Subject: Re: "Creators call for action on AI copyright exceptions"
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Laurent Le Meur raises 2 questions:

(1) What works have actually been copied/ingested for generative AI
development, by whom, and from what locations?

Because generative AI developers have failed to respect the moral right of
authors to attribution, authors can only partially determine, and only by
reverse engineering, what has been scraped from the Web, by whom, and from
where.

AI developers and providers of generative AI services could easily provide
a link in each derivative work generated by such a service to an online
searchable index of the works in the corpus from which it was generated,
and require in their terms of service that users include such a link.

This would be similar to the requirement to include credit/attribution and
a link to the relevant Creative Commons or other open source license
whenever a derivative work includes any material under such a license.

But AI services have not done this, probably because they know that
identifying the works in the corpus they have copied would make it easier
for the authors of works in that corpus to hold them liable for copyright
infringement or other violations of authors' rights.

(2) The geographic applicability of national laws and the Berne Convention:

> The second aspect has to do with the geographical limits of a European
> Directive. If a content publisher is not European and its content is
> not stored on an EU server, it seems difficult for a TDM/AI actor (EU
> or US based) to claim that such content can be scrapped under the EU
> law. And from the list of companies having signed the statement, most
> or all seem to be American organizations. I mean, it seems the claims
> you have gathered make no legal sense. And therefore the European
> Union cannot do anything about such foolish claims. I'm not a lawyer,
> this is just my understanding of the situation.

I'm not a lawyer either, but I think this reflects a misunderstanding --
in fact, a reversal -- of the geographic applicability of national laws
and the Berne Convention.

In some cases national governments assert "long-arm" jurisdiction over
acts occurring outside their borders, but this is a rare exception.

In general, jurisdiction over copyright infringement (like most other
violations of law) depends on the place where the violation occurs.

The US has, in general, no jurisdiction over acts occurring outside the
US, even if they implicate the rights or interests of US citizens.
Similarly, the EU has, in general, no jurisdiction over acts occurring in
the US or elsewhere, even if they implicate the rights of EU citizens.

Acts such as Web crawling carried out from the EU are governed by the laws
of the EU and its members states. If individuals outside the EU believe
that their rights have been violated by such actions, their only recourse
is under the law of the EU and/or its member states.

If entities in the US scrape the World Wide Web, their actions are subject
to US law. If entities in an EU member state scrape the World Wide Web,
their actions are subject to the laws of that member state.

This is why the Berne Convention was adopted: Without a treaty, citizens
of country X might have no recourse against infringing acts carried out in
country Y, if country Y chose not to protect foreign authors or works.

The Berne Convention does not apply to national laws applicable to works
created and published within that country. A party to the Berne Convention
can choose to enact lesser protection, or none, to national works. (Some
countries including the US do, in fact, provide less protection to
national works than to foreign works.) The Berne Convention exists
specifically to set minimum standards for the protection that state
parties must provide for acts occurring in their countries that implicate
works and the rights of authors in *other* parties to the treaty.

Activities such as cross-border Web scraping are exactly at the core of
the activities to which the Berne Convention was intended to apply.

> Now, if your statement is about the EU DSM Directive contradicting the
> Berne Convention for content stored in Europe and/or EU content
> publishers, this is another matter.

The Berne Convention does not apply to acts in an EU member state that
implicate works created and published in that member state. The Berne
Convention applies *only* to acts in a Berne state party that implicate
works created and/or first published in a *different* Berne state party.

Hope this helps,

Edward Hasbrouck

----------------
Edward Hasbrouck
<ehasbrouck@nwu.org>
+1-415-824-0214 (San Francisco)

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