Axios AI+DC Summit: Copyright protection in the AI era will be up to the courts, industry leaders say

Washington, D.C. — As policymakers grapple with how to regulate AI, the hardest questions around copyright and fair use are being punted to the courts, according to governance, creator, and technology experts at an Axios expert voices roundtable.

The big picture: With Congress moving slowly and disagreements over policy, judges are becoming the primary deciders of how AI and the creators work together — or don't.

• That's partly by necessity: "Fair use is incredibly complicated — case by case, fact specific," News/Media Alliance president and CEO Danielle Coffey said.
• "Each case that we get … we start to get these new guideposts," Jones Walker partner Graham Ryan said.
• Ryan said they expect at least three fair use decisions this year that will have implications for the broader AI-artist ecosystem.

Axios' Maria Curi and Ashley Gold moderated the March 25 discussion, which was sponsored by Adobe.

What they're saying: Legal uncertainty remains. For example, two courts within the same district, and during the same week, differed in the reasoning behind their rulings on similar matters of fair use and AI.

• "There is a current, live controversy over … the extant understanding of the fourth factor in fair use, which is: Does the copy replace the market for the work?" said Kevin Bankston, senior adviser for the Center for Democracy & Technology.
• Still, "we have been trying to support the process through the courts, because we think there is a really strong framework in copyright law for protecting artists right now," according to Public Knowledge president and CEO Chris Lewis.

The bottom line: "This is about creative labor and about human creativity as much as it is about technology," Americans for the Arts CEO Erin Harkey said.

• There is an "importance of policy in this conversation, and not to just leave it up to market forces."

Content from the sponsor's remarks:

"We've spent the last 40 years building these products and driving this creativity," Louise Pentland, chief legal officer and executive vice president of legal and government relations at Adobe, said in her introductory comments.

• "We don't strip the internet. We don't train on non-licensed IPs," Pentland added.
• "The future of AI depends on giving creators more clarity [and] more control."