Publishers’ group warns that generative AI content could violate copyright law

A publishers’ trade association— which includes the New York Times, the Washington Post, Disney, and NBCUniversal—is reminding members that AI tools built on their archives could break copyright laws.

According to a draft of guidelines from Digital Content Next that was shared with Marketing Brew, “copyright laws protect content creators from the unlicensed use of their content” and “use of copyrighted works in AI systems are subject to analysis under copyright and fair use law.” Additionally, it says that “most of the use of publishers’ original content by AI systems for both training and output purposes would likely be found to go far beyond the scope of fair use as set forth in the Copyright Act and established case law.”

The document, which hasn’t been shared with members yet, also notes that “use of original content by [generative AI] systems for training, surfacing, or synthesizing is not authorized by most publishers’ terms and conditions, or contemplated by existing agreements.”

Titled “Principles for Development and Governance of Generative AI,” the draft was written with input from members with the goal of giving publishers a tool to help aid discussions with generative AI companies, regulators, and internal conversations, according to Jason Kint, the trade group’s CEO.

While the ad industry goes gaga for generative AI, many publishers have raised red flags about the impact these tools could have on the media ecosystem. They’ve expressed concerns around whether responses generated by AI are gleaning information from behind paywalls and how these tools could potentially cut into site traffic.

Some are also concerned that these models have been trained on content from their archives without compensation or proper attribution to the publisher. “Publishers created this original content. They have a right to monetize it, and any sort of unauthorized use of it undermines their business model and is a violation of copyright law,” Chris Pedigo, DCN’s SVP for government affairs, said.

Sam Altman, CEO of ChatGPT-maker OpenAI, told the Wall Street Journal that the company has “done a lot with fair use,” the legal doctrine that lets copyrighted material be used without permission under certain circumstances. He also said the company has made deals for content.

Kint declined to say if any of its members were considering legal action over generative AI-related copyright issues. Still, publishers should have a seat at the table and an opportunity to discuss potential compensation and how any information pulled from their archives will be credited, he said. “There’s lots of different ways that they may choose to negotiate, but that negotiation should happen.”

In addition to calling for stronger regulations that could help publishers protect their intellectual property, the draft says generative AI tools should include “clear and prominent attributions in a way that identifies to users the original sources of the output…and encourages users to navigate to those sources.”

Several publishers have indicated that they believe generative AI is more than just a hype cycle, with some using it on their own sites. In May, the Washington Post created an “AI Taskforce” to navigate the “significant opportunity” AI presents. Axios co-founder and CEO Jim Vanderhai penned a column that led with the prediction that AI “will soon transform media on a scale and pace that rivals the internet two decades ago.”

Representatives from OpenAI attended a DCN board meeting in April, Kint said. DCN’s board of directors includes representatives from Fox News, the Associated Press, and Warner Bros. Discovery. OpenAI didn’t respond to a request for comment from Marketing Brew.

The Wall Street Journal previously reported that the News Media Alliance, another publishing trade group, had held meetings regarding AI with its members recently.

Axel Springer, which owns Morning Brew, is a member of DCN.