There’s no question these neural networks and their output are derivative works. However being a derivative work isn’t enough to guarantee copyright infringement.
So, the only question is if we are going to carve out an exception here or not. The idea someone can use a VCR to copy live TV and let people watch it later came out of a court case not copyright law. There’s a lot of such exceptions, but getting one isn’t guaranteed.
In the two US cases we have any progress on so far, the established requirement for substantial similarity (opposed to "dependant on" or such) has been upheld, with Judge Vince Chhabria specifically setting out that it'd "have to mean that if you put the Llama language model next to Sarah Silverman's book, you would say they're similar". and Judge William H. Orrick agreeing with the defendants that "plaintiffs cannot plausibly allege the Output Images are substantially similar or re-present protected aspects of copyrighted Training Images, especially in light of plaintiffs’ admission that Output Images are unlikely to look like the Training Images".
The UK definition of derivative works is, to my understanding, narrower and specifically enumerated as opposed to the US's more open-ended definition.
The remaining area of doubt, assuming the above remains consistent, is over the transient copying that occurs during training.
i think this should be dismissed as it is the same level of transience as the workings of the internet; you and your ISP, caching proxies etc, all made a transient copy as part of the existing (legal) consumption of the works that the author has put online.
Unless the works was illegally copied for training - which cannot be true if the works was publicly available for viewing on the internet, this transient copying cannot be a valid infringement.
Downloading a singe transient copy of some image once in the lifetime of a company is different than doing that same action a hundred times once for each version of the network.
Hard to argue keeping a copy of some copyrighted work indefinitely counts as transient.
Precisely to argue for transient copies, they don't need to keep terabytes of data stored.
>Hard to argue keeping a copy of some copyrighted work indefinitely counts as transient.
You're assuming that they're keeping the works indefinitely, which again is not the case.
Those kinds of legal workarounds rarely work.
They are dependent persistent access allowing them the equivalent benefit of keeping a persistent copy.
Defendants can easily argue that being 1/10 millionth or whatever of the training set means their specific work is unlikely to show up in any specific example but the underlying mechanism means it can be recreated.
A derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work (the underlying work).
There is absolutely no agreement that what neural networks do (as a rule) counts as such, so it is not at all correct to say "there is no question..."
If learning how to draw by watching other people draw makes everything you draw a derivative work, then perhaps you have a point.
For a neural network to be able to recreate a complex work with minimal prompting it must be encode that information and therefore be a derivative work.
The big one is recipes. Recipes under the current copyright regime in the US are considered non-copyrightable facts, which is why every cookbook and recipe blog has lots of copyrightable splash photos and personal anecdotes. Congress specifically doesn’t want grandmas getting sued for copying the recipe on the box.
fair use is mostly a US concept, there is no such thing in the UK or most other countries
https://www.twobirds.com/en/insights/2020/uk/intellectual-pr...
https://www.copyright.eu/docs/protection-of-a-recipe/
Though you can patent novel methods of food production, which is also true in the US.
The root statement is still the same, legislatures can amend copyright laws as they wish if they really care. I don’t know that the UK parliament is exactly functioning well right now, but that’s my impression from across the pond.
in terms of ability to legislate it works considerably better than the US congress
up to you if you call that well functioning
Recipes don't have a specific exception within the the copyright law that Congress has carved out.
It is also not cut and dry. It basically boils down to facts not being copyrightable. So a list of ingredients and basic instructions (e.g. cooking time and temperature) won't be granted copyright protection.
But, the prose in the instructions can be copyrighted. So copying a whole recipe verbatim can be copyright infringement, but copying the list of ingredients and writing out the basic instructions is not.
Most generated content almost certainly isn’t derivative work by the standards of copyright law. It’s plainly obvious to anybody who’s read Frank Herbert’s books that he derived a lot of ideas from Isaac Asimov, but it’s equally obvious that Dune isn’t a derivative work of Foundation.
If I had some commercial interest in generative AI models, I’d be very happy that everybody is debating the copyright implications. Because copyright law is certainly going to favour the models. The biggest regulatory risk to them as far as I can tell is that they clearly don’t have section 230 protections, and I can’t imagine how that isn’t going to come crashing down around them rather soon.
Specific examples of clear copyright infringement mean that output is a derivative work AND by encoding enough information to recreate it the underlying neural network must itself be a derivative work.
Judge Orrick in one of the US cases already called this idea 'nonsense", his words.
Specific and clear examples of derivative works are shown therefore both those exact examples and the underlying neural network must be a derivative work.