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November 17, 2023

PPA’s Comments on the Copyright’s Office NOI on Generative Artificial Intelligence

At the end of October, PPA had the opportunity to submit comments to the U.S. Copyright Office as part of their Notice of Inquiry regarding Generative Artificial Intelligence (AI), referring to images, texts, and other content aka “outputs” in response to a user’s textual prompts aka “inputs.” These generative AI programs are trained using “machine learning” to generate such outputs partly by exposing them to large quantities of existing works such as photographs. The nature of works sourced by these programs can vary from images in the public domain to properly licensed images or in perhaps the worst case scraped from website publicly accessible galleries.  

PPA recognizes the powerful impact of these technologies both good and bad, in particular the danger that it poses to our industry when used in unethical ways. We are grateful for the chance to express our perspectives on the crucial topic of copyright law and the rights of creators in relation to artificial intelligence (AI), particularly generative AI. Here are some of the questions PPA addressed in the letter to the Copyright Office.


PPA acknowledges the Benefits & Risks of AI 

“AI technology presents the opportunity for almost infinitely beneficial tools for creators to access in ways we cannot yet imagine. Professional photographers are already using AI tools to streamline their work. Unfortunately, the risks that AI presents to the professional photographic industry are equally pronounced. The largest risk is the intentional scraping of a photographer’s work.” 

A photographer’s portfolio holds immense value and oftentimes one exhibits their best work in their public galleries, as a way to offer prints and exhibit their skill. These valuable assets are at risk of being scraped by generative AI programs and then used to produce works that compete directly with the inputs, in essence creating a situation where a photographer must compete directly with themselves. 

“Claims by the generative AI industry that the new works created may not actually reflect the original creators’ works, and therefore will not compete with the original creator, are meaningless. The fact remains that photographers are being forced to compete with an entity that only exists because it has been allowed to scrape their works.” 


Unique Issues with Generative AI 

“To the extent that AI systems generate images that are substantially similar to the creative work of photographers, there must be accountability.1 They cannot be allowed to steal photographers’ work and then compete with those photographers using that same work.”  

PPA’s objection is to the manner is which much of the generative AI industry has unjustly enriched itself at the expense of creators. Many companies made the decision to take first and ask for forgiveness later and the fact they didn’t explore options with creators is an indictment of those generative AI companies. 

“AI companies freely admit they need massive volumes of human-created works, which necessarily includes copyrighted works, to make their systems functional and marketable. Those companies are now worth tens of billions of dollars – OpenAI has publicly stated its valuation at $90 billion.1 Again, by their own admission, generative AI systems would not work if they didn’t take our members’ works. There is no credible view but that this constitutes a blatant taking of value and transfer of wealth.” 


Collective Licensing 

“Some advocate a collective licensing scheme to provide some form of compensation to creators for the use of their works to build AI systems. PPA could not disagree more. At every level of the analysis, collective licensing is inappropriate, especially at this stage.” 

A major part of this discussion on collective licensing must include the fact that works are valued differently, not only from one image to the next but also according to the photographer. Attempts to collectively license would discount the workings of the free-market and destabilize the photographic industry. 

The most basic building blocks of a successful collective licensing system are trust, transparency, and accountability. In the context of AI scraping, none of those exist.  


 Is Legislation Needed? 

“Is legislation needed to address issues with generative AI? The answer is a resounding, ‘Yes!’” 

Legislation is absolutely necessary for protecting not just our industry but the entire intellectual property industry. The law should be clear that AI companies may only ingest works with permission of the copyright owner and compensation for their work. AI companies should be required to disclose how, when, and where ingested works have been used, it is a fundamental building block for trust, transparency, and accountability.  

If the value from copyrighted works can be taken to build companies worth tens of billions of dollars, even in their infancy, then the creators of those works deserve compensation. 


In Conclusion 

“What PPA opposes in the strongest terms is the unethical, unfair, and illegal conduct of many AI companies. The unauthorized secret scraping of our members’ works for commercial advantage must not be excused or overlooked – they cannot be deemed unfortunate early casualties that will soon be forgotten.” 

New technologies will emerge as we progress as a society but we cannot overlook an entire industry, thousands of businesses, not to mention law and all fairness.  

PPA implores the Copyright Office to take a clear, strong, and unambiguous stance against this conduct.   


Click here to read our full comments.