The existing jurisprudence governing the use of copyrighted material to train AI models typically falls in one of three categories-

under pre-existing copyright

regimes through fair use provisions which may not cater directly to TDM, limited TDM exceptions, or broad TDM exceptions.

Country Relevant Acts Principle underlying Substantive Summary

policy regime

Fair Use US Section 107 of the Fair use exemption The fair use analysis consists of 4 factors: the purpose and character of the
US copyright Act judicially determined on a use, the nature of the copyrighted work, the amount and substantiality of the
of 1976 case to case basis portion used and the effect of the use upon the potential market for or value
of the copyrighted work.
In the landmark Judgment of Google LLC v. Oracle Inc in 2021, SCOTUS
that Google’s replication of Java’s API to develop Android qualified as fair
use, emphasizing the public benefit of not allowing a creator too much
control over the development of new applications, which could be
applicable for a case favouring TDM rights.

Canada S28, 29, 30 Fair dealing exemption Fair dealing refers to using copyrighted works for research, private study,
Copyright Act judicially determined on a criticism, review, education, satire, parody, and news reporting purposes.
case to case basis and “[T]he purpose of the dealing, the character of the dealing, the amount of
the dealing, the nature of the work, available alternatives to the dealing and
the effect of the dealing on the work are all factors”1 are all relevant to
assess the ‘fairness’ of a ‘dealing’.

Section 30, Permissibility of creating Temporary reproductions of works for technological processes do not
Copyright Act temporary reproductions violate copyright if they are an "essential part of the technological process",
for technological facilitate non-infringing use, and "exists only for the duration of the
processes technological process". However, the consensus is that the Act does not
contain a text and data mining-specific exception, and hence this section
may not serve as a TDM exception.2

1
CCH v. LSUC (2004)
2
Martin-Bariteau, Florian and Scassa, Teresa, Artificial Intelligence and the Law in Canada (February 1, 2021). Florian Martin-Bariteau & Teresa Scassa, eds., Artificial
Intelligence and the Law in Canada (Toronto: LexisNexis Canada, 2021), Available at SSRN: https://ssrn.com/abstract=3734675
 India Section 52(a) of the Fair dealing exemptions Using a copyrighted work for "criticism or review" being fair dealing with
Copyright Act 1957 judicially determined on a the work, shall not constitute copyright infringement. The success of a fair
case to case basis use claim is dependent on whether the output is "transformative". The test
for determining whether a work is transformative is whether it differs in
character, serves a different purpose than the previous work, and is not
merely a substitute. It is not sufficient to make only superficial changes to
the work.3 4

Limited United Section 29A Limited Exemption only The UK Copyright Act provides a limited exemption to copyright by
TDM Kingdom5 Copyright, designs for non-commercial use allowing text and data mining from lawfully accessed works for non-
exception and parents act commercial use only. Such copy must also be accompanied by
1988. acknowledgment. The UK IPO has also clarified that “Contract terms that
stop researchers making copies of works to which they have lawful access
in order to carry out a text and data mining analysis will be unenforceable.” 6
Hence, the use of Copyrighted Content by AI is permitted under only under
License or exemption.

EU Articles 3 and 4 of Policy regime on TDM Acts of reproduction (for copyright subject matter) and extraction (for the
the Directive on Exception (for scientific sui generis database right, SGDR) made by research organizations and
Copyright and research) and Opt Out cultural heritage institutions (hereinafter research and cultural organisations)
Digital Single Mechanism for Copyright in order for research organisations and cultural heritage institutions to carry
Market Owners for TDM for out text and data mining for the purposes of scientific research is exempted
other purposes by Article 3. Article 4 permits reproductions and extractions of lawfully

3
(Syndicate of The Press of The University of Cambridge on Behalf of The Chancellor, Masters and School and Ors. v. B.D. Bhandari and Ors. 185 (2011) DLT 346)
4
https://www.mondaq.com/india/new-technology/1337528/a-brief-look-at-the-copyright-issues-raised-by-generative-ai
5
The DSM Directive's implementation deadline occurred after the UK/EU Brexit transition period expired, and so it was not implemented in the UK.
6
https://mse.dlapiper.com/post/102ivrx/training-ai-models-content-copyright-and-the-eu-and-uk-tdm-exceptions
 accessible7 works by all users and for TDM, given that copyright owners
can chose to “opt out”/ expressly reserve their right for such reproductions
of their work through means like meta data tags

Broad Japan8 Articles 30-4, 47-4 Policy regime based on Article 30-4 of the Copyright Act allows users to ‘analyze and understand
TDM and 46-5 Copyright exemption which creates copyrighted works for machine learning’, creating an exemption for the use
Exceptio Act (Act No. 48 of safe harbour for Text and of copyrighted works for generative AI for ‘informational analysis’ (defined
n May 6, 1970) data mining as the act of extracting language, sound and images from a large set of
introduced by Act information, and comparing, categorizing and carrying out other analysis of
No. 72 of July 13, such information) unless it unreasonably prejudices the interest of the
2018 copyright owner. Article 47-4 permits creating incidental copies of works to
carry out machine learning unless it unless it unreasonably prejudices the
interest of the copyright owner and article 47-5 ‘allows the use of
copyrighted works for data verification’. 9

Singapor Sections 243 and Policy regime based on This exception covers computational data analysis, which includes using a
e1011 244, Copyright Act allowing computational computer program to analyze information from a protected work. The key
data analysis conditions for this exception include that the copy is made for
computational data analysis purposes, not used for other purposes, not
shared except for specific reasons, and obtained lawfully12. It also considers
whether the original material is infringing and, even if it is, if the use is
necessary for a prescribed purpose. These provisions aim to strike a balance,
allowing researchers to leverage copyrighted works for TDM while setting
clear conditions to ensure compliance with copyright laws.

7
Lawful access should be understood as covering access to content based on an open access policy or through contractual arrangements between rightholders and research
organisations or cultural heritage institutions, such as subscriptions, or through other lawful means. For instance, in the case of subscriptions taken by research
organisations or cultural heritage institutions, the persons attached thereto and covered by those subscriptions should be deemed to have lawful access. Lawful access
should also cover access to content that is freely available online recital 14 DSM
8
https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2023/10/japanese-law-issues-surrounding-generative-ai-chatgpt-bard-and-beyond.pdf
9
https://www.japaneselawtranslation.go.jp/en/laws/view/3379#je_ch2sc3sb5at29
10
https://www.reedsmith.com/en/perspectives/ai-in-entertainment-and-media/2023/06/text-and-data-mining-around-the-globe
11
https://www.twobirds.com/en/insights/2021/singapore/coming-up-in-singapore-new-copyright-exception-for-text-and-data-mining
12
Lawful access from the illustrations of s244 involves obtaining permission to access a copyrighted work in a manner consistent with legal and contractual obligations (not
bypassing a paywall), while unlawful access refers to accessing the work without proper authorization or in violation of established terms and conditions (violating terms of
use of a database – unless they exclude or restrict inter alia - computational data analysis – then can be ignored)
 Israel13 Ministry of Justice, Protection under pre- Using copyrighted material to train ML is usually covered by fair use. It
Opinion: Uses Of existing copyright regime may also fall under the doctrine allowing incidental uses of copyrighted
Copyrighted materials. Where the copyrighted materials are erased at the end of the ML
Materials For process, protection is provided under the transient use doctrine.
Machine Learning,
December 18, 2022

In countries like Canada where TDM exceptions have not been explicitly created and the current view is that fair use regimes could govern the same,
consultations are being conducted on the implications of generative artificial intelligence for copyright 14 . Elsewhere, like in the UK, there were plans to
create a broad exemption for training Generative AI on all kinds of contents but the country soon did a U-turn post the report by the Committee on Culture,
Media and Sport considering its impact on the creative industry.15 The Government currently has a strong inclination to adopt the Beijing Treaty on
Audiovisual performances as recommended by committee which provides performances moral and integrity rights over their performances and plans
introduce a code of practice on copyright and AI to “to make licences for data mining more available”. 16 The EU AI Act, expected to come into force in the
latter half of 2024 will also govern various aspects relevant to TDM such as policies to identify and respect creator opt-outs 17 and disclosure copyrighted
materials in training datasets18

Add- present regimes unfit and why briefly

13
https://www.gov.il/BlobFolder/legalinfo/machine-learning/he/18-12-2022.pdf
14
https://www.canada.ca/en/innovation-science-economic-development/news/2023/10/government-of-canada-launches-consultation-on-the-implications-of-generative-
artificial-intelligence-for-copyright.html
15
See, Report by the Committee on Culture, Media and Sport advocating against for a banket exemption for Generative AI
https://drive.google.com/file/d/1NY3BC5FUcX6T2Bg7032UWZ73ItqJ47NM/view?usp=share_link ; See also, response report by the UK House of Commonse accepting
suggestions by the Committee report and promising to implement the Beijing Treaty on Audiovisual Performances
https://drive.google.com/file/d/12TsO_X7TSqNSx_4GSUaFkUHRR3wyGd5C/view
16
Ibid
17
https://mse.dlapiper.com/post/102ivrx/training-ai-models-content-copyright-and-the-eu-and-uk-tdm-exceptions#page=1
18
https://www.theverge.com/2023/4/28/23702437/eu-ai-act-disclose-copyright-training-data-report