Intellectual property (IP) is crucial for sustaining economic growth across the African continent, with an integrated policy framework to advance a unified system. There are challenges around IP awareness, rights and enforcement mechanisms.
Strengthening the rights of creators to spur further innovation across Africa is important. Statutory remuneration guarantees for generated works to provide a return for investment is important.
African content creators can’t work for nothing, but are increasingly demotivated by free-riders, and the downside effects of Artificial Intelligence (AI).
This makes the AI related Getty images United Kingdom case and its forthcoming judgment important for the judiciary across the African continent to consider relevant aspects. Many African countries are working towards strengthening their IP systems to encourage innovation.
It is important to discuss the Getty Images v Stability AI case. Getty Images is a leading licensor of stock photography images. Stability AI, the defendant is a developer of generative AI systems, and its Stable Diffusion' models. Getty images sued Stability AI for infringing its IP rights arguing, among other issues, that it unlawfully used its photographs in the training and development of Stable Diffusion.
Getty insisted that Stability AI is liable for secondary copyright and trade mark infringement, and passing off. Notwithstanding, the defendants deny liability. In general, passing off simply means that the defendant is misrepresenting its goods and services as those of another, exploiting its reputation and goodwill – in the process harming its business and goodwill as a result of the created product confusion.
The judgment will obviously have far reaching implications in defining the relationships between content producers and AI developers. The intersection between IP law and digital technology is complex and bound to pose legal tensions with copyright holders.
Understanding the claim
Let’s dissect the claim. Getty images argue that the defendants scraped and unlawfully used millions of its images carrying copyrights without prior consent. The images were used to train the defendants’ AI model.
It argued that the defendants reproduced ‘substantial’ parts of its works. Getty also contends that the output produced by the defendants in response to user prompts infringes its copyright by reproducing substantial parts of the works. Further, it averred that such infringements are a violation of its exclusive right vested in the works.
However, Stability denies the claim and argued that the development and training of its Stable Diffusion models occurred outside the UK jurisdiction, even though it doesn’t deny using the works. Further, the issue takes trademark law dimension in which the claimant argues that the defendants used infringement and deceptive trade practices that take unfair advantage of its trade marks. In the process, the claimant provided details of its monetary investment it has made in obtaining, verifying and presenting the contents of its database.
The court’s substantive judgment shall pose significant ramifications to copyright law, and how it must adjust to meet the exigencies of the digital era. In many jurisdictions, particularly South Africa, copyright law has been slow to adjust and conform to the dictates of the digital era. There shall be lessons to be drawn from the case, once judgment is handed.
As a former journalist, I understand the downside impact the Internet and technology has had on copyright holders’ remuneration. Many media companies have shut down. The common victims that come to mind are Media24, which closed its several iconic print publications.
The Daily Maverick is also experiencing a severe migraine caused by the digital era. Many global media companies announced significant layoffs, as consumers migrate to tech platforms, adapting and embracing digital news. Unlawful copying and or misappropriation of news have a harmful remuneration effect on media proprietors.
AI content creation tensions
The exploitation of content using AI has created tensions between media proprietors and tech giants. It’s something African content producers must be alive to and exert their IP rights. Media proprietors invest a lot of money in the production of content. The law must set parameters for compensation where clear infringement claims are established.
The interests of well over 50,000 photographers concerns were articulated in the Getty Images case. Many African freelance journalists might want to read through the case, to understand how they could secure their rights. The outcome will be significant either way: shaping copyright law and setting parameters for AI development in relation to existing copyright law.
Issues for further debate around Africa IP jurisprudence can also centre around remuneration frameworks for the exploitation of content without compensation, and how to decide on the quantification for damages. The AI data management of copyright works is a contentious issue, and the extent to which copyright works should be respected.
A balance will have to be made between facilitating the exploitation of content without compromising technological innovation arising from demotivating free-riding activities. Besides, Stability AI has already contended that the court case is all about: ‘technological innovation and freedom of ideas,’ while Getty avers it’s about respect for copyrights.
This is an uncharted territory which should provide lessons for this jurisdiction in developing AI policy frameworks. Africa’s authors can unlock their IP investments and competitiveness through creating robust IP legal frameworks that address the emerging challenges associated with AI.
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