Don't use artworks to train AI without author's consent

Nina Fitzgerald, a partner at Ashurst in Sydney, believescopyright laws should not permit the use of artworks to train AI systems without the author's consent.

Fitzgerald was speaking in connection with Sydney-based illustrator KimLeutwyler’s discovery last year that her portraits were being used to train AI image generators, without her consent. These AI image generators are currently being tapped to develop certain commercial apps. Among these is the photo and video editing app Lensa which enables users to create their own digital portraits in different styles.

Leutwyler learned that her artworks were included in LAION-5B, an openly accessible image-text dataset containing 5 billion images and text captions. Different AI systems had been trained using these images and text captions.

Obviously, several other artists are in the same boat as Leutwyler, resulting in a wave of protests online.

“In my view, artists should have the opportunity to decide whether they want their artworks to be used to train an AI system and, if so, on what terms,” said Fitzgerald, “including whether a licence payment should be made.”

She explained that copyright protection is necessary to empower artists to prevent the unlicenced use of their artworks.

“There is a risk that AI systems trained on a particular artist's works may create copious similar forms of artwork diminishing the value of the artist's own unique original artworks and impacting on their ability to earn a livelihood from their art,” said Fitzgerald. “This appears to undermine this key purpose of the copyright system.”

She added that the incident involving Leutwyler and other artists may be a case of copyright infringement.

To train an AI image generator, artistic works including drawings, paintings and photographs are used to teach an AI system to perform its job. Such artistic works are likely to be downloaded from the internet and provided to the system. As part of the training, the AI system may also reproduce the works in different forms.

“If the downloads and reproductions occur without the copyright owner's consent, under Australian law, the developers or programmers who download the images or instruct the system to reproduce the works are likely to infringe the creator's copyright,” Fitzgerald said.

There are exceptions to copyright infringement under Australian law however. These include fair dealing exceptions for research and study, criticism and review, reporting the news, parody and satire or temporary copying when downloading from an authorized source.

“However, it may be challenging to rely on the exceptions if the image generator is used for a commercial purpose and no attempt is made to contact the artist that created the images on which the image generator was trained,” Fitzgerald noted.