Unpacking copyright infringement issues in the GenAI development lifecycle and a peek into the future

Abstract

Generative AI (“GAI”) refers to deep learning models that ingest input data and “learn” to produce output that mimics such data when duly prompted. This feature, however, has given rise to numerous claims of infringement by the owners of copyright in the training material. Relevantly, three questions have emerged for the law of copyright: (1) whether prima facie acts of infringement are disclosed at each stage of the GAI development lifecycle; (2) whether such acts fall within the scope of the text and data mining (“TDM”) exceptions; and (3) whether (and, if so, how successfully) the fair use exception may be invoked by GAI developers as a defence to infringement claims. This paper critically examines these questions in turn and considers, in particular, their interplay with the so-called “memorisation” phenomenon. It is argued that although infringing acts might occur in the process of downloading in-copyright training material and training the GAI model in question, TDM and fair use exceptions (where available) may yet exonerate developers from copyright liability under the right conditions.