Can we talk about AI and IP for a sec?
According to the searchable database in Alex Reisner’s article from The Atlantic, there are at least 183,000 books that have the right to lead the fight against AI in publishing. Thankfully, my book, The Art of Capturing Phantoms: Definitive Edition, is not one of them.
On the one hand, I’m relieved to see that the Books3 data set used by Meta, Bloomberg, and other generative AI programs overlooked my independently published short story collection. It seems that I am still small enough of a writer at this stage in my career to where I’m not making enough waves to be deemed by AI to be worthy of imitating, which gives me time to prepare for what’s to come in the long run like this whole AI nonsense.
On the other hand, I’m extremely mad and disappointed. The works of several authors I personally know have their books listed in that database, which means that their work was essentially used without consent, credit, or compensation. By all accounts, the copyright for those works has been infringed, and it’s going to take every lawyer along with every author that testifies in the upcoming lawsuit to craft the perfect argument for it.
Because in terms of intellectual property and copyright itself, things potentially get tricky when it comes to AI. As quoted from the U.S. Copyright Office’s FAQ page, a work “is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device”. This blog post that you’re reading would, therefore, be copyrighted to me because you, dear reader, are perceiving it “either directly or with the aid of a machine or device” such as your phone, computer, or tablet. This entire website and its content is copyrighted to me as well because it was “created and fixed in a tangible form” last year. All of the stories in The Art of Capturing Phantoms: Definitive Edition are copyrighted to me because they’re in a print and digital form.
This is why you see “All rights reserved” at the end of TV show credits or on book’s copyright pages. It means that the author reserves the right to copy, distribute, sell, or otherwise build upon their material. I made it. It’s mine. I do with it how I see fit. Simple as that.
Yet what about works that don’t benefit from copyright protection, such as those in the public domain or licensed under Creative Commons? In fact, what do both of those terms even mean?
Generally speaking, copyright protection for a work lasts for the life of the author plus an additional 70 years if the work was created after January 1, 1978. Once that seventy years is up, the work then falls into what is known as the “public domain,” meaning that the public can do whatever it wants with it. It’s why Shakespeare plays are still in production across the world and why there are so many YA fairytale retellings being published right now. Anyone can legally use or reference these works without having to ask for the author or copyright owner’s permission, and they don’t have to pay any licensing fees.
If your work is licensed under Creative Commons, you essentially give up your copyright protection by declaring that it’s in the public domain from the beginning, and that’s not always a bad thing. Copyright protection can be very restrictive and limiting in regards to sharing new ideas and culture, and not everyone is interested in creating things for monetary purposes. Some people want to make things free to the public for educational or entertainment purposes. By making these things more accessible, we’re giving more room for conversation and enlightenment. We’re not putting things behind paywalls or greed.
In that case, people using AI software have every right to train it using the works of Shakespeare or even the older version of Phantoms that I published under Creative Commons in 2018. Back then, I would have been ecstatic to see somebody remix or adapt those stories. I wanted other writers to get creative and to be inspired by what I was doing. For other ideas, I wanted to keep them to myself, but for this? I was fine with the first version being a grab bag because it meant fostering creativity.
If AI were trained on IP in a legal, judicious manner, I’d have no problem with it. I still wouldn’t use it to generate whole content from cloth because I prefer being involved in the creative process and teaching myself about storytelling, but I’d have no qualms about others who use it for themselves. For some people, AI is the beginning of automating certain processes that free up time for other tasks, and that excites me (so long as robots don’t take over the world and become sentient).
What grinds my gears is the misuse and abuse of AI for generating creative content. What sets me off is when writers aren’t paid for the work they do and the skills that they’ve studied and labored years to hone. What gets under my skin is when writers aren’t hired for the jobs that they deserve to get and instead are replaced by machines that do a mediocre job without pay or complaint in order for companies to maximize profits.
Something is very, very wrong when a major literary magazine is forced to close its submissions portal because it has received over 500 machine-written submissions and 700 legitimate ones. In an effort to gain a publication credit, fame, or even a few quick bucks, people are turning to AI to meet their desires, unaware and uncaring of how the AI is producing this output. It’s unethical, and it needs to change.
If you care about any of this—about writers and the law—please considering signing this petition from the Authors Guild like I did today. I don’t think that AI is going away. I think that we’re essentially headed for a future where certain repetitive tasks might be handled by machines or that technology can help those who are traditionally marginalized and underrepresented, but it has to do it in a responsible manner that still allows for human creativity and societal function. So long as capitalism has a boot on our collective necks, we will be subject to the exploitation of our works in the name of higher profits without our consent, credit, or compensation, and it’s up to us to ensure our own protection.