Public Interest, the True Soul: Copyright's Fair Use Doctrine and the Use of Copyrighted Works to Train Generative AI Tools
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Public Interest, the True Soul: Copyright's Fair
Use Doctrine and the Use of Copyrighted Works to
Train Generative Al Tools
Elizabeth Spica, Ph.D., J.D.*
Abstract
Generative Artificial Intelligence (Al) tools like ChatGPT, Gemini, and Stable
Diffusion are trained using datasets that often include entire copyrighted works. The
use of copyrighted works to train these increasingly prominent tools has proven so
controversial that a senior executive from one of the most well-known AI frms re-
cently resigned, stating it was exploitative for AI developers to scrape and use
mass amounts of internet data to train their systems without first gaining consent
from copyright holders.' In this article, I examine these concerns and ultimately con-
clude that the ingestion of entire copyrighted works for the purpose of training Gen-
erative AI tools likely constitutes a transformative use under U.S. copyright's Fair
Use Doctrine. In arriving at this conclusion, Ifirstprovide a briefoverview ofcurrent
litigation, then introduce case law instructive to the application offair use to chal-
lenges presented by Generative AI tools. Next, I apply that case law to the ingestion
of copyrighted works for training Generative AI tools, arguing that such use consti-
tutes a transformative, fair use under U.S. copyright law. Finally, the article ends
with optimism, exploring implications for the future of copyright law and outlining
the numerous avenues that creators still have to uphold their exclusive rights.
Table of Contents
I. Introduction ......................................................................................................68
II. The U .S. Copyright Fair U se D octrine .............................................................72
A. Factor 1. [T]he purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes. 73
B. Factor 2. [T]he nature of the copyrighted work.............................. 75
C. Factor 3. [T]he amount and substantiality of the portion used in relation
to the copyrighted work as a whole.................................................. 76
* J.D., University of Tennessee College of Law; Ph.D., Higher Education Administration, University
of Tennessee Department of Educational Leadership and Policy Studies. The author would like to
thank Professor Lucy Jewel, whose insight and expertise helped shape this article.
1 Zoe Kleinman, AI Chief Quits over 'Exploitative' Copyright Row, BBC.coM (Nov. 17, 2023),
https://www.bbc.com/news/technology-67446000.amp.
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Public Interest, the True Soul: Copyright's Fair Use Doctrine and the Use of Copyrighted Works to Train Generative AI Tools
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