Special Issue: Copyright and AI, Part 1

We are pleased to have Bill Rosenblatt as our guest co-editor for our third issue of Volume 71. With AI being the topic, no one can stop discussion; we are devoting this issue to questions related to AI, both in conversations with industry leaders as well as academic articles. Part I concentrates on the 2024 Copyright + Technology Conference. Part II is the published version of the 2023 Meyer Lecture by Justin Hughes. Part III then turns to scholarly articles related to Artificial Intelligence. We end with Part IV with a quick outward look of administrative and legislative developments in different parts of the world. Let’s begin with the Copyright + Technology 2024 conference.

Bill Rosenblatt is the founder of the Copyright + Technology conference, and for the first time, we are publishing transcripts from the Copyright + Technology conference, held in New York on September 30, 2024. We begin with a short introductory piece by Bill on the history and development of the Copyright + Technology conference below, and then an introduction to each of the panels at this year’s conference, along with the keynote speaker, Tom Rubin. We have transcribed the full day and are pleased to present the conference in its entirety. So, let’s turn to Bill, the founder and program chair of the Copyright + Technology conference.

Bill: A Little Bit of Background. Copyright + Technology began in 2009 as a blog. It was an extension of a website that I had been publishing since 2002, just after the publication of my book on digital rights management, which featured news and analysis of that technology and related business and legal developments. The company to which I had sold the website decided to discontinue it, so I started a blog that would reflect the continued development of technologies related to copyright without committing to which directions those developments would take. I chose a name that was both open-ended and available as a domain name: copyrightandtechnology.com.

The following year, Copyright and Technology also became an annual conference. One of my inspirations was a Future of Music Coalition conference that I attended back in the early 2000s, when the Napster litigation was still a fresh memory. This was the first time that I remember seeing all types of people in the same room, having no choice but to engage with one another: technologists, musicians, music industry people, entrepreneurs, lawyers, policy wonks, and academics. It got a little ugly at times, but the resulting dialog was a revelation. In 2016 I began producing the Copyright and Technology conference in partnership with the Copyright Society, and eventually the “and” morphed into a plus sign. I’ve had the great fortune to work with (and be a member of) the Copyright Society ever since.

I am a technologist by background; I became fascinated with the use of information technology to manage copyrights at the start of the Internet age back in the mid-1990s, when I was working as an IT executive in the publishing industry and serving on an industry committee that was developing standards for managing copyrights in the online era. I thought that with the Internet’s massive scale and virtually nonexistent cost to reproduce content, technology held the keys to solutions to various problems in rights management, from managing licenses and royalties all the way through to distributing content to users; and I got involved with a few of those solutions. The blog has since gone the way of many blogs – i.e., by the wayside.

Now Copyright + Technology is exclusively an annual conference. We discuss the technologies, the laws and policies that they are meant to implement, the litigations that define their boundaries and applicabilities, and the business models that they enable. We invite all types of stakeholders, we aim for balance, and we avoid polemics. And we endeavor to get speakers who are at the front lines of developments in the most impactful areas in which copyright and technology rub up against each other. Through the eras of DRM, user-generated content, watermarking, content recognition, streaming, cloud computing, blockchain, and now AI (not to mention SOPA, PIPA, ACTA, BRR, GRD, MMA, HADOPI, UK Copyright Hub, EU Article 17, etc., etc.), there has been plenty to talk about. Thanks to the Copyright Society’s involvement, and that of the Fordham IP Institute, the Copyright + Technology conference has flourished over the past several years. This next step in its evolution is one that I’m particularly proud of: Prof. Elizabeth Townsend Gard has deemed the proceedings of 2024’s conference worthy of inclusion in the scholarly record of which she is now the steward. You hold the result in your hands.

Copyright + Technology 2024. This year’s keynote speaker was Tom Rubin. He was the first to give an “encore” performance; he gave the keynote at the second conference back in 2011 when he was Chief Intellectual Property Strategy Counsel at Microsoft. I felt that his thoughtful, knowledgeable, and experience- based approach would resonate today now that he is “in the eye of the hurricane” at OpenAI – although I invited him in his personal capacity, given his long history and experience with these issues (including many years teaching at Stanford Law School), and his remarks are independent of and do not necessarily reflect any official positions of his current employer.

Three of the four panels at this year’s conference related to AI; and of those, two panels addressed classes of technological solutions to AI-related copyright issues. The first of these reflects parallels that the current AI era has with the development of interactive streaming two decades ago: the potential need for online services to take licenses to “all” content of a given type, and thus the need for mechanisms to enable such licensing on a massive scale. Solutions to this problem for streaming developed exclusively in the market until a statutorily mandated solution – for music, in the form of the Music Modernization Act – appeared in 2018. Analogously, the panel “My Blanket and Me: Blanket Licensing for Generative AI” discussed various companies’ efforts to build blanket licensing platforms for AI uses in advance of any substantive results from courts or Congress.

Another type of technology being developed to address copyright issues (among others) in the AI context is attribution – digital “paper trails” that establish the human or non-human authorship of content. Many of the technologies for establishing attribution, such as digital watermarking and online content identifiers, have existed since the 1990s and have been used in specific applications for infringement detection and rights administration. But the need to establish robust attribution trails takes on new levels of meaning in the age of AI; and the emphasis today is on standardization and interoperability of the myriad technologies, chiefly through the Coalition for Content Provenance and Authenticity (C2PA). These were discussed on the panel “The Paper Trail: Attribution, AI, and Copyright” at our conference.

Generative AI is a revolutionary set of technologies, but it’s also the latest in a series of innovations that have given more people the ability to produce more content more quickly – just as 4-track cassette studios, desktop publishing, digital photography, and so many others have done over the years. Given that AI is already taking the sheer volume of content being generated to new orders of magnitude, the panel “The Extremely Large Elephant In the Room: The Overabundance of Content in the Age of AI” considered the structural changes that the content industries might undergo as a result.

Our final panel in Copyright + Technology 2024, “No Advance Permission Required: The Future of Compulsory Licensing,” was prompted by the recent dispute between music publishers and Spotify over the terms of the § 115 compulsory license for reproduction of musical works; it considered the rationales behind the several compulsory licenses that are unique to U.S. copyright law – and to what extent those rationales are still valid in an era where technological change can render the terms of such licenses obsolete too quickly for the law to keep up.

Elizabeth: This has been such a fun experience, and I’m so glad to be co- editing with Bill. The panels and keynote bring such amazing insight into this new world of AI. Thank you to our Copyright Society Fellows editing team, including law students Tess Bradley, Kristin Ivey, Holly Haney, and Brijan Kana.

Part II then publishes the 20th Annual Christopher Meyer Lecture from 2023, delivered by Justin Hughes, looking into “Intellectual Property and the Creature of Generative AI.”

Then, in Part III, we then turn a number of Articles related to AI, starting with “The Heart of the Matter: Copyright, AI Training and LLMS,” authored by Daniel Gervais, Haralambos Marmanis, Noam Shemtov, and Catherine Zaller Rowland, which explains the technology of large language models (LLMs), and then analysis of copyright laws in a comparative and international perspective. We then have Dr. Barry Scannell’s piece, “All Ais on the EU AI Act’s Copyright Provisions: Navigating a New Legal Frontier,” which looks in particular at Article 53 and Recital 106 of the EU AI Act. We move on to Brian Frye’s AI-generated piece on AI and Copyright, “Apologia Pro Plagio Suo,” which is a fun and very positive read on AI written with the help of AI. We then asked Amy L. Landers to write a piece, “Attention Copyright Experts: Patent Changes That Must On Your Radar.” And then we end the articles section with a piece by Elizabeth Townsend Gard and Bijou Mgbojikwe, “The Copyright Office and the First Two AI Reports,” which looks at the beginning responses of the U.S. Copyright Office to AI, including the Copyright Registration Guidance and the first AI report on deepfakes. In the tradition of the Journal, it includes excerpts from both to keep our readership up to date.

And finally, Part VI, Out in the World, overseen by Bijou Mgbojikwe, looks at various jurisdictions and their administration and legislative updates related to AI.

So, this is a big issue. So big that we have a second issue on AI for Volume 71(4). AI is a big topic. Thank you to our amazing Copyright Society law fellows team, including Brjan Kana, Managing Editor, Tess Bradley, Articles Editor, Kristin Ivey, Senior Editor, and Holly Haney, also Senior Editor. They are a small but mighty team. Thank you also to Teddie Bernard, our Production Director for the Journal, and of course, Kaitland Kubat, who makes everything go in the most elegant way, and Daniel Cooper, President of the Copyright Society, who is so supportive of the Journal’s work. We hope you enjoy the conversations!

Elizabeth Townsend Gard
Editor-in-Chief
Journal of the Copyright Society
John E. Koerner Endowed Professor of Law Tulane University Law School eic@copyrightsociety.org

Bill Rosenblatt (Guest Co-Editor) Founder and Organizer Copyright + Technology Conference Copyright Society
GiantSteps Media Technology Strategies Adjunct Professor, Music & Performing Arts Professions, NYU
billr@giantstepsmts.com