CCB Magazine

Karina Filusch: "A model lawsuit would be desirable"

Photo: © Kevin Geduhn und Lennard Geduhn

Artificial intelligence is increasingly being used in creative fields of work. What consequences does this have for the copyrights of artists and cultural workers? What adjustments are necessary? We talked about this with lawyer Karina Filusch.

INTERVIEW  Boris Messing    

CCB Magazine: Hello Ms. Filusch, you are a specialist lawyer for IT law and are very familiar with copyright issues. Has the use of AI tools like ChatGPT or Midjourney changed anything in German copyright law?

Karina Filusch:The subject of AI is not explicitly regulated. German laws are generally very old and so general that we do not necessarily need a reform of copyright law for digitization. The laws are worded in such a way that they can also be interpreted to the new situation with AI tools. Nevertheless, it would of course be more legally secure if the word artificial intelligence were to appear somewhere in copyright law. Another perfectly sensible regulation for more transparency would be, for example, to stipulate in copyright law that the sources of works used by AI systems must always be indicated.

CCB Magazine:What is the general problem that AI poses in copyright law?

Karina Filusch:On the one hand, AI tools are fed or trained with the works of creative people. These can be texts, images, songs, videos, etc. Without the works through which the AI learns, it cannot produce any results. However, the AI tools are also used by the creatives themselves to create more works, so again texts, images, songs, etc. This means that an AI that trains with works that are not freely available, i.e., copyrighted, would have to pay the creators for making their works available. Not the AI itself, of course, but the developers of the AI or the company. But that is not the case at the moment.

The subject of AI is not explicitly regulated in German copyright law. However, the laws are worded in such a way that they can also be interpreted to the new situation with AI tools

CCB Magazine:Let's take a step back: When does an artist have a copyright at all?

Karina Filusch:German law stipulates that a certain level of creativity must be reached for a work of art to be protected by copyright. In other words, a minimum amount of artistic work must be put into something in order to become the author of a work. This threshold is very low in Germany.

CCB Magazine:There is one thing I don't understand. Copyright law refers exclusively to man-made works. At the same time, as you say, AI tools are increasingly being used for creative work. Isn't that a contradiction?

Karina Filusch:In this sense, AI is understood as a tool, just as the paintbrush is a kind of tool for the painter or the guitar for the musician. The human being still remains the creator - at least as long as the AI creates enough possibilities for the creative to actually influence the end result.

CCB Magazine:But the difference is that the AI trains with the works of others and produces its results on the basis of them.

Karina Filusch:That is why it is good that in August 2021 the term pastiche was introduced. Pastiche joins the ranks here with the terms parody and caricature. For parodies and caricatures, works of others may be used if the exaggerating or parodying character of the new work is clearly recognizable. Then no copyright is infringed. The pastiche can be understood in this context as a kind of homage to another work. This can also be a mix of different works of art by other artists. Pastiches are for example remixes, memes, GIFs, fan fiction or similar.

An AI that trains with works that are not freely available, i.e., copyrighted, would have to pay the creators for making their works available

CCB Magazine:But if they are not memes or GIFs, but real works of art created with AI, then surely copyrights can be infringed?

Karina Filusch:Yes, insofar as the AI was fed with works whose rights of use were not released. Let's take images as an example, this explains it well. If the AI is trained with images whose usage rights have been released, i.e. are in the public domain, then that's okay. But if copyrights are broken, which is often the case, then that's not okay.

CCB Magazine:But how can I determine what the AI has been fed?

Karina Filusch:As a user or artist, you usually can't do that. Only the artists who created the artworks with which the AI was trained know this. They can then assert their rights of use against the manufacturer of the AI. Whereas, as I said, the pastiche regulation allows the use of other people's artwork under certain circumstances.

CCB Magazine:Who is liable for infringement when artists use AI tools that infringe copyrights?

Karina Filusch:If the artists who use the AI can effectively claim to have made a pastiche, then they are out of liability and then only the software producers or companies remain. So far, such cases only exist in the US. OpenAI and Meta are currently being sued for over three billion dollars in damages. They feed their AIs with artworks by artists for whose works they have no rights of use. I've been waiting for an artist to hire me to sue on their behalf. In Germany, there is still no case law on the subject. For me the legal situation is clear, people have to get money. A model lawsuit would therefore be desirable. In technically new situations, it is necessary to strive for model lawsuits in order to bring clarity to the matter. To do this, however, someone must first be found who is willing to file such a lawsuit. If the plaintiff were to be awarded remuneration from works used by AI, that would be a clear statement and would put a stop to such practices in the media. It is very nice that the legislator gives the artists this right, but if society does not notice this and no pressure is built up from the outside, then the laws are useless.

In Germany, there is still no case law on the subject of AI and copyright infringement. A model lawsuit would therefore be desirable to bring clarity to the matter

CCB Magazine:That's what Sascha Lobo and other AI critics say: people who contribute works to the training of the AI must be paid for it. But the fact is that the AI is fed with thousands and thousands of works of art - even if the individual artists were paid, wouldn't that just leave peanuts in the end? And how could remuneration for people who provide data for AIs be implemented in practice?

Karina Filusch:Unfortunately, you're right. But as an artist you can always negotiate. As an artist, I can also say that I don't want to sell my work for five euros, that's too little for me. You always have a choice, you can negotiate, even if a confrontation with Microsoft or Meta seems like a battle between David and Goliath.

CCB Magazine:What is the role of collecting societies such as Gema or VG Wort in connection with AI and licensing rights? Wouldn't they have incentives to sue?

Karina Filusch:Actually, the Gema could sue for music pieces that are used by an AI without having paid the musicians beforehand. It's a pity that Gema hasn't done that so far. But here, too, you first need a plaintiff who is willing to do this. In addition, it needs lawyers who think outside the box and understand that this has a social relevance for musicians and artists.

CCB Magazine:AI does not stop at any national borders. Shouldn't there therefore be a pan-European or even global solution to copyright problems related to AI?

Karina Filusch:You are absolutely right, it should be regulated all over the world. Right now, it's not regulated anywhere. The EU is working on an AI Act right now. Until now, artists can only rely on their national law. Conversely, globally active companies like the big tech giants have to follow every single copyright law in every single European country, which is not very effective. A uniform overall European regulation would be better.

CCB Magazine:In conclusion, what opportunities can the use of AI offer creators and the creative industries as a whole? Or does AI create more problems in this regard?

Karina Filusch:I am a technology lover, so I see the AI tools for artists as opportunities for them to create more art. I don't see the danger that artists will be replaced by them. It's still human works that the AI is fed with, especially since it takes humans to make social criticism that goes into artwork. AI is simply a new tool, a new brush.

Category: Knowledge & Analysis