Fair use in generative AI | What is Fair and What is not
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Some factors that can help determine if an AI's work qualifies as fair use of copyrighted material include: The purpose and character of the use: Uses for criticism, commentary, news reporting, teaching, and research are more likely to be considered fair use. Commercial uses are less likely to qualify. So if the AI's work is created for research or educational purposes, it has a better chance of being fair use. The nature of the copyrighted work: Using factual works is more likely to be considered fair use than using creative works like music, movies, books, etc. So if the AI relies more on public domain factual data, that weighs in favor of fair use. The amount and substantiality of the portion used: Using a small amount of copyrighted work is more likely to be considered fair use than using the work in its entirety. So if the AI only incorporates small snippets or elements from copyrighted works, that leans towards fair use. The effect of the use upon the potential market: If the AI's work could significantly hurt the market or potential market value of the original work, it reduces the chances of being deemed fair use. But if there is little or no negative market impact, that supports an argument for fair use. Transformativeness: If the AI's work transforms the original copyrighted work by using it for a different purpose or changing its character, it is more likely to be considered fair use. For example, parodying an existing work could qualify as fair use. But merely republishing or redistributing the original work with minimal changes would not. Attribution: Properly attributing the original copyrighted work used by the AI also strengthens the case for fair use. Not crediting the source material at all weakens any fair use claims. So by analyzing these factors around the AI's work and process, one can get a reasonable sense of whether its creations may qualify as fair use of any copyrighted material. But there is always some uncertainty here, and courts can interpret fair use claims differently in different situations. |
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