INTELLECTUAL PROPERTY

RIGHTS

LAVANYA KOHLI
BALLB 2020 (A)
20010768
 INCLUSION OF COPYRIGHTED MATERIAL IN AI MACHINE LEARNING
DATABASE VIS-À-VIS SARAH SILVERMAN CASE

The headlines of New York Times, on 10th July 2023 stated – “Sarah Silverman Sues OpenAI
and Meta Over Copyright Infringement”.1 Its recent news that authors started to sue open AI,
for using their copyrighted material to train ChatGPT . In an ongoing legal case filed before
the US district court this suit opens up new doors to debate on the rights of the author v. the
public interest. This reflection paper highlights my views, reflecting on the topic.

To give an overview of the Silverman Case, popular comedian and author Sarah Silverman ,
sued open AI for copyright infringement . She alleged that Open AI used her copyrighted
work , specifically mentioning her book “bedwetter” to train their artificial intelligence
models including ChatGPT. The authors claim that their works were obtained from "shadow
library" sites that are frequently used in AI training. The lawsuits include exhibits showing
how ChatGPT generated text based on their copyrighted material including providing
summary of the book. This material was copied by the AI without any consent, without
giving credit, and compensation.2

Every author has a right over their work. These rights can be moral and economic. Although
it is next to impossible to predict the outcome of a legal matter, and each case needs to be
decided on its individual merit. However, what is of grave importance is the tug of war
situation that has emerged, between the moral and economic right of the author v. the right to
fair use of information by the AI in interest of the public.

THE AUTHORS RIGHT (ECONOMIC + MORAL)-

In the case involving Sarah Silverman and OpenAI, the alleged violation of economic rights
and moral rights of authors over their work is centric to the dispute. Copyright law endows
several “exclusive” rights upon the creators of copyrightable works. It guarantees
reproduction right to the author with an “exclusive” authority to make copies of their

1
Zachary Small, “Sarah Silverman Sues OpenAI and Meta Over Copyright Infringement” The New York Times
(10 July, 2023).

2
Supra.
intellectual works or authorize others to do so. In furtherance of this is Article 9(1) of the
Berne convention3 that explicitly conforms that author has exclusive right to authorize the
reproduction of their work in any manner or form. The use of these copyrighted materials and
further reproduction to the public is detrimental to the exclusivity right guaranteed to the
author by the copyright law. Copyright regimes further bestows the author with the right to
distribute and license their work, this right is not merely just an economic right however it
also encompasses to be a moral right. The author possesses the prerogative to grant an
intermediary the authority to disseminate their work, however this right is also alienated from
the author when artificial intelligence starts using authors work to train themselves. In this
scenario, authors work is taken by ChatGPT, without their prior consent, without giving them
any royalties or any monetary benefit. Their work is now disseminated to a large number of
audiences, thus reducing the market value of the work.

Further, this case not only has to be seen as an infringement to one’s economic rights only but
also the moral rights associated with copyright ownership. The Berne Convention, under
Article 6bis, safeguards the moral rights of authors by ensuring that authors have the right to
claim authorship of their work and to object to any actions that would be prejudicial to their
honor or reputation.4 Section 57(1) of the 1957 Indian Copyright Act also safeguards the
moral rights of authors, providing authors with the right to claim authorship and to restrain or
claim damages in case of any distortion, mutilation, modification, or other acts that could
harm their honor or reputation.5It’s important to note that moral rights are inalienable rights,
and cannot be assigned or licensed to third parties. These rights exist throughout the lifespan
of the copyright and offer additional protection to authors beyond their economic rights.

In this instance, there is a direct infringement of the authors paternity rights, the right of the
author to have their names associated with the work. In this case, Open AI’s use of their
copyrighted material without proper attribution infringed upon their paternity right. Further,
right of Integrity ensures that the author can protect and preserve the integrity of their
artwork. Authors may argue that unauthorized use of their materials, especially if it distorts or
modifies the original work, violates their right of integrity. In this particular instance when
OpenAI’s ChatGPT is using the work of Sarah Silverman, it is highly likely that her ideas are

3
Berne Convention for the Protection of Literary and Artistic Works, Art. 9(1).
4
Berne Convention for the Protection of Literary and Artistic Works, Art. 6bis.
5
The Copyright Act 1957, S. 57(1).
being copied by the AI, without giving her any due credit. Further, the usage of her work by
AI increases the chances of unorganized alterations or distortions of the original work.

Thus, Sarah Silverman has a strong case as per the copyright regime against OpenAI, in
furtherance of maintaining her economic and moral rights as per the copyright regime.

The Other Side of The Coin – Protection Under Fair Use Doctrine

On the other side of this debate lies the large language models – GPT 3.5 and GPT 4, which
have been alleged to be using copyrighted material. However, this material at the end of the
day is being used for the benefit of the public. Further, one can argue that they are not
reproducing the copyrighted content as it is. Rather this can be considered as transformative
innovation using copyrighted material in a way that could potentially fall under the fair use
doctrine, as they generate new, original content based on input they are given. Further, AI
generators use their own skill and judgement and their own mind to create content. Moreover,
such material can be used in contribution towards technological innovations.6

By combining – transformation of content, autonomous generation and technological

advancement; argument can be made that the output generated by these AI models falls under
the fair use doctrine. This means that even if the models are trained on copyrighted material,
their transformative nature and contribution to innovation may provide a strong case for fair
use, especially when the granted content serves the purpose beyond just mere reproduction or
direct substitution of the original content. The legal precedent that can be used by OpenAi,
would likely be the decision of the U.S. Court of Appeals for the Second Circuit's in Authors
Guild v. Google,7 In this particular judgement the court ruled that digitization of copyrighted
books by google comes under the fair use doctrine by the virtue that it was for a
transformative search function, there was limited display of snippets and commercial motive
did not constitute copyright infringement . This precedent supports OpenAi’s mission to
balance copyright protection with innovation in AI research and development while
respecting intellectual property rights.

What Does The Future Hold –

6
Ellen Glover, “AI-Generated Content and Copyright Law: What We Know” Builtin ( 23 August 2023).

7
Authors Guild Inc v Google Inc, No. 13-4829-cv (2d Cir. Oct. 16, 2015).
Although it is certain that economic and moral rights of the author guaranteed by the
copyright regime need to be protected, however the doctrine of fair use seems to be a logical
and solid defence in the present case. To satisfactorily apply the fair use test – 4 factors needs
to be considered – character of the use, nature of the work, quantity of the work that will be
used and its effect on market value. The outcome of Sarah Silverman case will be a mystery
till the time court goes into the facts of the case and arrives at its judgement.8

However what is important here is to note that, this is just the beginning of such suits. The
conventions and copyright act itself in various jurisdictions was not prepared envisaging
Artificial intelligence. There thus is a need for one to reframe the laws , keeping in mind the
need of the hour, in order to maintain a justifiable balance between the authors rights and the
right of the AI to use databases for the furtherance of public interest.

The real challenge is to find remedies which ensure generative AI to progress while ensuring
that creators are not put to a disadvantage. There is a hope that alike the music industry that
evolved from piracy to legitimate platforms like spotify, Gaana, the AI field could also evolve
into a licensing system. Despite several challenges , there are start-ups who are exploring
innovative approaches for the future. One idea can be to avoid copyright infringement
through proper licensing or by generating content specifically for AI training. One current
example for the same can be “Stack” dataset. 9 Which offers open source code with
permissive licensing and data removal mechanisms on request. Such initiatives are vital to
reshape the relationship between creators and AI.

8
Folsom v Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841).
9
James Vincent, “The scary truth about AI copyright is nobody knows what will happen next” The Verge (15
November 2022).