From 13 to 17 March 2023, Creative Commons (CC) participated in the 43rd session of the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) in Geneva, Switzerland. In this blog post, we look back on the highlights of the SCCR/43 week.

Excited to be @WIPO in Geneva to attend the #SCCR on behalf of @creativecommons #copyright #publicdomain #exceptions #culturalheritage #bettersharing pic.twitter.com/bW6F6ynVsW

— Brigitte Vézina (@Brigitte_Vezina) March 15, 2023

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Wikimedia denied observer status…again

We once again support the Wikimedia Foundation, who have yet again been denied accreditation as an observer to WIPO’s standing committee on copyright and related rights (SCCR).

CC’s policy agenda at WIPO

We generally drive copyright reform towards better sharing of copyright content in the public interest and in tune with the sharing possibilities of the digital environment. We promote better sharing and open culture, and recently published a Call to Action to policymakers that offers a basis for a shared vision on better sharing in the cultural context. We also share many of the views co-developed by our partners in the A2K coalition, including Communia, Centrum Cyfrowe and Intellectual Property Institution. 

Our views on the draft broadcasting treaty

Regarding the discussions on a draft broadcasting treaty, we voiced our opposition to the Second Revised Draft Text of the Broadcasting Treaty. While we agree that broadcast content plays a key role in today’s society, the Draft would deal a severe blow to the public domain, threaten to unduly curtail the possibilities offered by open licensing, and is antithetical to people’s freedom to share and right to equitable access to knowledge. 

Our two main concerns were that the Draft (1) lacks robust, mandatory exceptions and limitations to guarantee access to broadcast content for purposes of research, education, journalism, cultural preservation and creativity; (2) threatens to unduly curtail the possibilities offered by open licensing and restrict access to or distribution of works already licensed under a Creative Commons license, as noted in the past. 

This is particularly concerning, given the way that open licenses like Creative Commons licenses are one way to improve distribution, allow for remix creativity, and enrich the resources available on popular free knowledge platforms such as Wikipedia. For example, in 2020, German public broadcaster ZDF released dozens of videos of its documentary series Terra X under CC licenses, leading to a massive increase in the amount of content available under open licenses for the benefit of users across the world. The videos on climate change published in 2019 soon found their way into prominent Wikipedia articles, leading to hundreds of thousands of views. 

Our views on exceptions and limitations

Preservation, access, sharing, use, and reuse of cultural heritage are essential ingredients of thriving and resilient societies and are demonstrated contributors to sustainable development. Alas, overly restrictive or outdated copyright laws continue to raise unnecessary barriers around cultural heritage. CC stewards legal tools to enhance the sharing of a wide variety of creative content, including cultural heritage. But while they advance global sharing, they are not designed to establish a general, permissive framework for everyone — that is the role of clear, effective, and consistent limitations and exceptions.

We welcomed the Toolkit on Preservation (SCCR/43/4); it is a valuable resource that provides important guidance. However, this document fails to consider the crucial aspect of access in preservation efforts. Preservation is not just about storage, it is about how our heritage lives on in the interpretations of researchers, in the recreations of creators, and in the minds and hearts of every member of the public enjoying their fundamental right to access cultural heritage. Access is a precondition for preservation that is meaningful, inclusive and sustainable. Moreover, this document is not a substitute for an international normative instrument that would guarantee clear and certain exceptions for preservation at the international level. 

Conclusions and next steps

Overall, we are pleased with the many steps forward taken by the Committee at this session. First, on exceptions and limitations, we welcome the SCCR’s adoption of a work program based on the Proposal by the African Group for a Draft Work Program on Exceptions and Limitations (SCCR/43/8), which we supported. The program calls on the Committee to discuss “priority issues” including:

1. to promote the adaptation of exceptions to ensure that laws at the national level enable the preservation activities of libraries, archives, and museums, including the use of preserved materials;
2. to promote the adaptation of exceptions to the online environment, such as by permitting teaching, learning and research through digital and online tools; and
3. to review implementation of the Marrakesh Treaty and how to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies.

The program also proposes that discussions be facilitated by the Committee on the UNESCO Recommendation on Open Science (2021) and its implications for international copyright laws and policies, an initiative that we support, given CC’s involvement in the development of this important UNESCO instrument. 

We are also pleased with its decision to start negotiations with a view to “preparing objectives and principles and options for implementation” on exceptions and limitations. 

Second, regarding the draft broadcasting treaty (SCCR/43/3), we commend the Committee for its decision to revise the document, including its limitations and exceptions provisions, and look forward to the Chair’s Third Revised Draft Text, which will be used as a basis for discussion at the next SCCR session. 

Third, the Committee agreed that there should be a three-day session of the SCCR (SCCR/44) during the week of November 6, 2023. We welcome this opportunity to intensify substantive discussions and look forward to actively participating in shaping a fairer and more balanced copyright system that supports better sharing in the public interest. 

Read our full statement →

 

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The post CC at WIPO SCCR 43 – Progress made on exceptions and limitations and draft appeared first on Creative Commons.

In my last blog post, I looked at whether copyright protects artistic style, particularly in the context of generative AI (GAI) art tools like Stable Diffusion and Midjourney. However, in the class action litigation against Stable Diffusion and Midjourney, the plaintiffs are not only concerned that people can use the GAI tools to produce works that mimic the works and/or styles of other artists, but they also argue that the tools should be liable for infringement conducted by their users. In this blog post, I look at this second issue — should GAI tools be held responsible for potential copyright infringement conducted by users of these tools?

What is vicarious liability? 

One of the claims raised in the suit against Stable Diffusion and Midjourney is that AI tools should be held vicariously liable for copyright infringement because their users can use the systems to create infringing works. Typically, legal liability arises where someone directly commits an act that harms another person in such a way that the law can hold that person responsible for their actions. This is “direct liability.” If a distracted driver hits a cyclist, the cyclist might ask the court to make the driver pay any damages, because the driver is directly liable for the accident. Normally, third parties are not considered responsible for the acts of other people. So, the law would probably not hold anyone but the driver liable for the accident — not a passenger, and not even one who was helping to navigate or who had asked the driver to make the trip. And unless the car was faulty, the manufacturer of the car would not be liable either, even though if no one had made the car the accident would not have happened: the car could have been used without harming anyone, but in this case it was the driver who made it cause harm. 

Under some circumstances, however, U.S. law may hold third parties liable for the harmful acts committed by other people. One such legal doctrine is “vicarious liability” — when a third party has essentially used another party to commit the harmful act. Courts in the United States have found vicarious liability in copyright law when two conditions are met: (1) the third party has the ability to supervise and control the acts of the person who committed the direct infringement, and (2) the third party has an “obvious and direct” financial benefit from the infringing activity. Notably, vicarious liability for infringement only occurs where another party has become directly liable for copyright infringement. If there was no direct liability for infringement at all, a third party cannot be held responsible. 

Vicarious liability requires a relationship between the third party and the person committing the direct infringement, where the third party retains some control over the other person’s actions and where the third party economically benefits from those actions — for example, an employer/employee relationship. 

In the US, the 9th Circuit examined the issue of control and technology-enabled vicarious copyright infringement in the specific context of search engines and credit card payment processors in Perfect 10 v. Amazon.com and Perfect 10 v. Visa. Perfect 10 v. Amazon.com involved Google image search linking to images owned by Perfect 10 on third-party websites. The court held that Google did not have the ability to control what those third-party websites were doing, even though it had control over its website index and its search results. Similarly, in Perfect 10 v. Visa, the 9th Circuit held that Visa was not liable for infringement committed by websites that hosted content belonging to Perfect 10, even though Visa processed credit card payment for those websites. The court wrote that “just like Google [in Perfect 10 v. Amazon.com], Defendants could likely take certain steps that may have the indirect effect of reducing infringing activity on the Internet at large. However, neither Google nor Defendants has any ability to directly control that activity.” In both cases, the relationship between the third party and the potential infringement was not close enough to sustain a vicarious infringement claim because of a lack of control. 

Turning to the second element, obvious and direct financial benefit, the 9th Circuit has written that this is satisfied where infringement acts as a draw for users to the service, and that there is a direct causal link between the infringing activities at issue and the financial benefit to the third party. In another case involving Perfect 10, Perfect 10 v. Giganews, the 9th Circuit held that Usenet provider, Giganews, did not derive a direct financial benefit from users who distributed Perfect 10’s content on their servers, even though Giganews charged a subscription fee to those users. Because it wasn’t clear that users were drawn to Giganews for its ability to distribute Perfect 10’s content, the court was unwilling to hold Giganews vicariously liable for the actions of its users.

Should generative AI tools be liable for the actions of their users?

How do these elements of control and financial benefit apply in the context of generative AI? Normally, no one would argue that the creators of art tools like paintbrushes or digital editing tools like Photoshop or Final Cut Pro should be responsible when their users use their tools for copyright infringement. Their creators cannot directly control how people use them and they do not clearly benefit from copyright infringement conducted with them. That seems uncontroversial. The question, however, is more complex with GAI because these platforms have the ability to deny service to users who misuse their services and may derive their profits/funding based on how many people use them. That said, tools like Stable Diffusion or Midjourney do not have the practical ability to prevent infringing uses of their tools. Like in Perfect 10 v. Amazon.com and Perfect 10 v. Visa, they do not directly control the ways people use their tools. While they could deny access to users who misuse the tools, it seems impossible to stop users from entering generic terms as text prompts to ultimately recreate copyrighted works. Furthermore, as I discussed in my previous post on style and copyright, there are legitimate reasons for people to use other artists’ copyrighted works, such as fair use. So, banning users from prompting tools with “in the style of” or “like another copyrighted work” would be overbroad, harming legitimate uses while trying to stop illegitimate ones, because we can only tell what is legitimate or not based on the facts of individual situations. 

As with any other general purpose art tool, there simply doesn’t seem to be a way to prevent all users from using GAI in ways that raise concerns under copyright, without shutting down the tools themselves, and stopping all uses, legitimate or not. Compare with something like automatic content filtering tools. These tools may be good at finding and automatically removing access to copyrighted material that is posted online, but even the best systems identify many false positives, removing access to permissible or authorized uses along with the infringing ones. In doing so, they can harm legitimate and beneficial uses that copyright law’s purpose is designed to support.

Moreover, GAI tools like Stable Diffusion and Midjourney do not necessarily have an “obvious and direct financial benefit” from copyright infringement conducted by users of their platforms. In the case of Stable Diffusion and Midjourney specifically, that link doesn’t appear to exist. They make the same amount of money from users, regardless of how they put the tools to use. Since neither platform advertises itself as a tool for infringement, both discourage copyright-infringing uses as parts of the terms of service, and neither profits directly from copyright infringement, there does not seem to be a direct causal link between these hypothetical infringing users and Stable Diffusion or Midjourney’s funding. 

Furthermore, it is not clear that copyright infringement is a draw for users to these services. As mentioned above, simply creating works in the style of another artist does not necessarily mean those works are infringing. Moreover, there may be legitimate reasons to use artists’ names as text prompts. For example, a parody artist may need to use the name of their subject to create their parodies, and these works would have a strong argument that they are permissible under fair use in the United States. 

For other GAI tools, the question of whether there is obvious and direct financial benefit from copyright infringement will be case-dependent. Nevertheless, the link between the ability to use the tools for copyright infringement and whether this is a draw for users to the GAI tools will likely be, at best, unclear in most circumstances. And without a causal link between the financial benefit to the GAI creator and infringement conducted by users, this element will not be met. 

Ultimately, while it’s easy to understand why artists would feel threatened by generative AI tools being able to mimic their artistic styles, copyright law should not be a barrier to the legitimate use and development of these tools. While it may make sense for the law to step in and prevent specific instances of infringement, copyright should not prevent the legitimate use and development of generative AI technologies, especially when they can help to expand and enhance human creativity. And while there may not be any perfect solutions to these issues, we need to figure out norms and best practices that can allow these promising new technologies to develop and thrive, while also respecting the rights and concerns of artists and the public interest in access to knowledge and culture. For now, we will watch and see what happens in the courts, and continue to encourage dialog and discussion in this area.

The post Style, Copyright, and Generative AI Part 2: Vicarious Liability appeared first on Creative Commons.

In my previous posts on generative AI, I discussed fair use and AI training data, copyright over AI outputs, and a recent U.S. Copyright Office decision on registration for a work produced by generative AI. In the next posts in our series, I will look at claims (exemplified in a recent case against Stable Diffusion and Midjourney) that generative AI (GAI) tools should be held liable under copyright law for their ability to output works in the style of specific, named artists.

The issue in a nutshell: Artists have raised legal claims against particular users who prompt a GAI and generate an output that copies from their original expressions. However, style is not generally protected by copyright, and that’s a good thing; if one artist were given a monopoly over anime, grunge music, or other styles, that would frustrate copyright’s core purpose of supporting creativity. What’s more, GAI tools provide myriad legitimate uses, and creators of those tools generally don’t directly control the actions of their users or financially benefit from uses that may infringe on pre-existing works. As such, they generally should not be held liable when actions of their user cross over the line into infringement.

In this blog post, I address the first issue — whether copyright should protect artistic style. In my next post, I will look at whether GAI tools should be liable if users create works that may infringe on works by other artists.

What’s the issue?

Before looking at the legal issues involved, it’s important to start with the concerns animating artists’ claims here. One part of these concerns seems to be related to the more general worry about AI disrupting the market for human work. Several months ago, an MIT Technology Review article wrote that Greg Rutkowski’s name was used at least 93,000 times to produce images using Stable Diffusion. Greg Rutkowski is an artist from Poland who is known for producing epic fantasy scenes, having created illustrations for things like Dungeons and Dragons and Magic the Gathering. If Stable Diffusion can create Rutkowski-like works by being instructed to “produce an epic fantasy scene with a fire breathing dragon fighting a noble warrior in the style of Greg Rutkowski,” why would anyone hire Rutkowski for his art any more? This AI generated content could be produced much more quickly and at a lower cost than commissioning Rutkowski for a custom piece. And, of course, this could apply to any artist and any style.

Even if the ability to generate similar works with AI doesn’t affect artists’ income or the economic value of the original artists’ works, artists still may feel that this devalues their work and their efforts in a more fundamental way. Artists spend time and effort establishing, developing, and refining their styles. If, all of a sudden, anyone could produce works in that style simply by adding some keywords into an AI text prompt box, it may appear to devalue the human creative effort and the integrity of their works.

Does copyright protect artistic style?

Concerns about devaluing the works created by human artists are important considerations — but are there problems that copyright law can and should fix? That is, can and should artists be able to claim copyright protection over the general style and feeling of their works, as opposed to the specific design elements expressed in their specific works?

One fundamental principle of copyright law is that copyright does not protect ideas, but instead protects the specific expressions of ideas that artists create through their art. As the Supreme Court wrote in Google v. Oracle: “copyright protection cannot be extended to ‘any idea, procedure, process, system, method of operation, concept, principle, or discovery ….’ [17 U.S.C.] § 102(b). These limitations … have often led courts to say, in shorthand form, that, unlike patents, which protect novel and useful ideas, copyrights protect ‘expression’ but not the ‘ideas’ that lie behind it.”

Looking at this in the context of style, style alone is not usually considered the subject matter of copyright. Consider, for example, music genres. Copyright does not extend to something like genre. So, copyright doesn’t protect the style of music “grunge,” and in fact, many bands who work in the same genre have similar sounds. Genres are, in fact, defined by stylistic similarities. So, for instance, early 1990s grunge bands had sounds that were, in many ways, alike: sludgy, heavy electric guitars, intense vocals, elements of both punk rock and heavy metal music. At the same time, however, copyright does protect specific expressions of that style: Nirvana’s Smells Like Teen Spirit, Pearl Jam’s Even Flow, Silverchair’s Tomorrow. Similarly, copyright doesn’t protect animation style. The American-made animated television show Avatar: The Last Airbender shares a similar animation and storytelling style with many Japanese anime shows. Indeed, people often think Avatar: The Last Airbender is, itself, a Japanese show. However, it is not a copy of any other show, even if it appears similar to anime.

Copyright doesn’t protect things like style and genre, because doing so would limit the ways that others can create other works, thereby chilling their ability to express themselves through their works. If the law allows artists to extend the scope of their copyright monopolies beyond their works to include elements outside their specific expression, it would compromise the ability of future artists to be inspired by and build from the art that they experience and love. A band like Silverchair, which sounds (at times) a bit like a mix of Nirvana and Pearl Jam, might have run into copyright problems if those bands had a copyright over their grunge sounds. Or a show like Avatar might never have been able to exist if the anime style itself was the subject of copyright.

At the same time, however, the line between style and expression can be fuzzy. Artists often work to develop idiosyncratic styles that differentiate their works from other artists. I think of the example of artists who illustrate superhero comic books. These artists often tell stories with the same characters, but present those characters in their own styles, such that you can easily tell one artist’s work from another. Scotti Young’s version of Spiderman is very different from Todd McFarlane’s or Jack Kirby’s. Each shares some similarities with the others — the character itself and the red and blue super suit — but are also very different. Indeed, they are so different, and have such strong styles, that you can recognize other works by the same artists, even without being told it’s them. Jack Kirby is one of the most influential comic artists of all time; if other artists create works that evoke his work, does that mean they are copying him? Moreover, while a character like Spiderman may be protected by copyright, it is not clear how the style in which he is portrayed is part of that. Where does the style end and the expression begin?

Additionally, some case law recognizes a degree of copyright protection over style. Professor Ed Lee, director of the program on intellectual property law at Chicago-Kent College of law, points to two cases on style and copyright: Malden Mills, Incorporated. v. Regency Mills and Steinberg v. Columbia Pictures Industries. In Malden Mills, the 2nd Circuit Court of Appeals held that two works were “substantially similar” because they shared a “style of representation” among other similarities. In Steinberg, the Southern District of New York wrote that “style is one ingredient of ‘expression.’”

In a similar vein, the 9th Circuit Court of Appeals in Williams v. Gaye upheld a jury verdict, finding that Robin Thicke and Pharell Williams copied Marvin Gaye’s Got to Give it Up with their song Blurred Lines. Notably, Thicke mentioned in several interviews that he was directly inspired by Marvin Gaye’s song. In fact, the dissenting judge in the case wrote that: “The majority allows the Gayes to accomplish what no one has before: copyright a musical style. ‘Blurred Lines’ and ‘Got to Give It Up’ are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.” Notably, the majority in that case denied these claims made by the dissent, calling them “hyperbole” and writing specifically that the decision “does not grant license to copyright a musical style.”

I believe that the best way to think about style’s position in copyright law is that design elements like style, design, and look are all parts of artistic expression, but cannot alone belong to a single artist. When two works are stylistically similar, that is part of the bigger question of whether the later work is “substantially similar” to the former — but it is only part. Under copyright law, a secondary work does not need to be a verbatim or identical copy to constitute copyright infringement. Instead, the secondary work only needs to be “substantially similar” to infringe on the first. While substantial similarity is “an elusive concept, not subject to precise definition”, we know that two works have to be both extrinsically similar (based on their objective features) and intrinsically similar (based on what an ordinary person would subjectively think) for one to infringe on the other. Stylistic similarity can be part of these questions — are there objectively similar elements of the two works, more than standard elements that belong to a particular genre, and would an ordinary person think they are similar? — but it cannot be determinative of “substantial similarity” by itself.

Style and artistic expression are certainly linked, but they are not the same thing. In some instances, mimicking an artist’s style may constitute copyright infringement, but when this is true will necessarily require a case-by-case analysis. Simply working in a style that is similar to another artist does not automatically mean the work is a copy. Moreover, there may be legitimate reasons to produce works in another artist’s style. The law should allow artists to be inspired by each other, even if that means having similar styles. Doing otherwise would chill expression, ultimately harming human creativity and the purposes of copyright law itself.

The post The Complex World of Style, Copyright, and Generative AI appeared first on Creative Commons.

“Open Culture creates a level playing field by making knowledge accessible to everyone regardless of geography.”  In this episode we get more insight into the role technology can play for Open Culture and how society benefits from the curation of open access collections. Our media often keeps information siloed but Open Access and Open Culture can bridge cultures and perspectives.

Open Culture VOICES is a series of short videos that highlight the benefits and barriers of open culture as well as inspiration and advice on the subject of opening up cultural heritage. Christian Dawson is the Executive Director of the MHz Foundation which provides technology tools for GLAM institutions and organizations to improve their open access programs. Christian has worked with numerous organizations which now share their collections openly thanks to the work of the MHz Foundation and Curationist.

Christian responds to the following questions:

1. What are the main benefits of open GLAM?
2. What are the barriers?
3. Could you share something someone else told you that opened up your eyes and mind about open GLAM?
4. Do you have a personal message to those hesitating to open up collections?

Closed captions are available for this video, you can turn them on by clicking the CC icon at the bottom of the video. A red line will appear under the icon when closed captions have been enabled. Closed captions may be affected by Internet connectivity — if you experience a lag, we recommend watching the videos directly on YouTube.

Want to hear more insights from Open Culture experts from around the world? Watch more episodes of Open Culture VOICES here >>

The post Christian Dawson — Open Culture VOICES, Season 2 Episode 7 appeared first on Creative Commons.

My name is Catherine Stihler, and I’m the CEO of Creative Commons.

As a nonprofit dedicated to supporting the sharing and reuse of creativity and knowledge, we strongly support the Internet Archive in its defense of Controlled Digital Lending. Free, equitable, and open access to all knowledge stimulates creativity, is essential for research and learning, and constitutes a bedrock principle of free and democratic societies.

The Internet Archive is leading the fight for establishing permanent access to historical collections that exist in digital format. With Controlled Digital Lending, libraries like the Internet Archive can lend one copy of digitized material from their collection to one borrower for a limited time, just like they would a physical book.

While publishers argue that CDL decreases their profits, studies show that in fact library digitization increases sales of physical editions by about 34% and increases the likelihood of any sale by 92%, particularly for less popular or out-of-print works. At Creative Commons, we believe copyright should encourage Controlled Digital Lending and ensure that legal mechanisms are in place to support this practice that benefits all.

This isn’t a position that we just came to on our own; instead, it came from working hand in hand with cultural and knowledge institutions across the world. Like Communia’s policy recommendations state: “libraries should be enabled to fulfill their mission in the digital environment.” As libraries modernize their services, we need to protect the legal frameworks that support their digital lending practices.

Permitting and protecting Controlled Digital Lending is a key way to help ensure copyright is fit for the modern age. Guided by our strong belief in better sharing, CC will continue to support the Internet Archive’s crucial efforts to ensure the public can access knowledge and culture on a global level.

The post CC Supports the Case for Controlled Digital Lending appeared first on Creative Commons.