Last week we looked at the challenge that generative AI creates for compensating the artists who produced the original work the blend. But what about writers vs. the AI chatbots. The bots are technically scarfing up work that is copyright to the author or publisher and incorporating it into the output.

A number of lawsuits have (of course) been filed, including one against chatbot heavy OpenAI, in which the plaintiffs include bestselling authors Elin Hilderbrand, Jonathan Franzen, and George R.R. Martin.

Open AI claims that its activities are “fair use.” As we saw with the artists’ concerns, the problem is that copyright law, as originally developed, was simply not designed to address generative AI or chatbots (technically, Large Language Models or LLMs). And it may not even be suitable.

Harvard law professor Rebecca Tushnet comments,

Where there is a need for guardrails, copyright is not the right way to handle it. Copyright owners, in general, have an interest in getting paid, which is not an interest in having socially beneficial output, or avoiding lies or hallucinations or anything like that. Copyright doesn’t handle questions like, “How do you make sure that the AI is not defaming someone or giving you instructions on how to eat a poisonous mushroom?” The law, especially fair use, was designed to be flexible and to handle new situations. And it’s done that quite well.

Christina Pazzanese, “Is ChatGPT more foul than fair?,” Harvard Gazette, September 21, 2023

One problem, she notes, is that things often develop in ways we don’t predict. Inventor Thomas Edison (1847–1931), for example, “thought that businessmen would use the phonograph to record memos and mail them to each other. That’s not how it was used at all. He didn’t foresee anything like the music industry that we now have.”

How deeply have chatbots penetrated the workplace?

According to a recent survey of 10,000 people who work at blue chip companies, nearly half have tried using OpenAI’s ChatGPT. That, say University of Essex business profs Peter Bloom and Pasi Ahonen, is “staggering,” when you consider it was only released in late 2022. How do they use it?

AI chatbots can help overcome human limitations, including speed, foreign languages and writer’s block – potentially helping with everything from writing emails to reports and articles to marketing campaigns. It’s a fascinating trans-human relationship in which the AI uses past human-produced texts to inform and shape the writing of new texts by other humans.

Peter Bloom, Pasi Ahonen, “ChatGPT: how to prevent it becoming a nightmare for professional writers, The Conversation, March 1, 2023

Bloom and Ahonen tried using ChatGPT to write their article but, they report, they didn’t find it particularly useful. So perhaps a critical question is, how inventive or original does the workplace user need to be? If all that management is expecting is conventional boilerplate, a bot could save a lot of time. George Orwell, after all, predicted the development of machines that could spit out approved copy back in 1949.

Where AI is handicapped is that it is strictly computational; it does not do creativity or original thought. So now we are back where we started: How do we compensate the original thinkers who produced the copy that is scarfed up and blended by the bot?

Some think writers are just obsolete Luddites

Economist Peter Morici is inclined to brush aside writers’ concerns because, he says, most of what the chatbots assimilate is public domain anyway. Also, he adds,

Like the Luddites weavers in the 18th century, who broke into factories to smash textile looms, these writers want special status to protect their employment from technological progress …

The problem for the novelist, artist, industrial designer, economists, coders and most anyone earning a living manipulating symbols, words and numbers or putting images on canvases and screens is that AI programs are becoming much more efficient than we are.

Peter Morici, “Fiction writers demanding money from AI chatbots are lost in fantasy,” MarketWatch, October 28, 2023

Actually, the comparison to the Luddites is revealing. Contrary to stereotype, the much-ridiculed machine smashers were not opposed to machines as such. They rebelled against the fact that only the industrial owners were benefiting from the machines’ development. The workers who ran them were still living in abject poverty. By analogy, most writers, like most factory workers, would accept a scheme that enables fair compensation for their work. The Hollywood Writers’ Strike, for example, was settled late last year by an agreement that cut the writers in on more of the new sources of income.

Is a public solution feasible?

The chatbots and other new AI creations are mainly the products of Big Tech, not of tens of thousands of small proprietors across the globe. Thus there is a comparatively small, fixed number of players on the other side of the table from the writers. One solution to consider might be a model along the lines of, for example, Canada’s Public Lending Right program, which sends yearly payments to Canadian authors whose works are found in public libraries in Canada.

Over 30 countries have similar programs; the basic idea is that if a book is free at the library, some readers will not buy it at the bookstore. That works for the reader but not for the author. The payment is a way for libraries to help balance the system — which depends at bottom on the creativity of the authors. Disclosure: I receive the annual PLR payment.

Could a system like this work for writers and illustrators? Given that a limited number of companies can actually create successful chatbots, it might be something for authors’ groups to negotiate with them. It might be worth considering as an alternative to expensive and risky lawsuits over uncharted territory.