Igor Gliha: The possibilities for protecting copyright on the internet have significantly decreased compared to the real world

The lawsuit by two novelists – Paul Tremblay and Mona Awad – filed last July against the company OpenAI, which is engaged in the research and implementation of artificial intelligence, has shown that this technological novelty, if nothing else, is still unregulated. Or at least insufficiently regulated, as the plaintiffs invoke copyright protection based on existing regulations. The lawsuit was filed in a federal court in San Francisco, in which the plaintiffs claim that the company’s large language model ChatGPT was programmed using data from their copyrighted books without their consent.

Although new technologies are emerging, the currently known ones are not devoid of examples of copyright abuse. We discuss all of this with Prof. Dr. Igor Gliha from the Faculty of Law in Zagreb, an expert in copyright law. He also shared his views on the relationship between authors and publishers, record labels, film producers… as well as negotiations with Google. He reminded us that the first copyright laws date back to the 18th century, and in Croatia, this area has been regulated since the mid-19th century. The idea that the results of intellectual work must be protected by law like property emerged during the French Revolution, and it was stated that copyright is the most sacred of all properties because if an owner has the right to control their belongings, then certainly such a right must also belong to the author regarding the results of their intellectual work. The personal attachment of the author is also important, which is sometimes equated with the relationship between a parent and a child. This can also be seen in the etymology of the word ‘plagiarism’, which in ancient Rome referred to the act of stealing a child or a slave.

AI is now everywhere around us. Are we gradually losing control over copyright protection due to this technological innovation?

– I am not sufficiently familiar with the demands of the lawsuit by the mentioned novelists, but let’s imagine such a lawsuit in a world without artificial intelligence where their novel serves as literature for students. Would authors, in addition to compensation for sales or other access to the book, have the right to seek compensation for the fact that students learn from it? The answer is no. Therefore, in my opinion, if the demand were directed at compensation ‘for learning’, even if the ‘student’ is AI, it would not be justified. However, the demand for compensation could certainly be justified if their work is digitally reproduced for the purpose of learning or some other act of use for that purpose. But, I repeat, I am not familiar with the specific content of the lawsuit, so I speak in general terms. For the success of such a lawsuit, in addition to legal reasoning, a very good understanding of the technology of artificial intelligence operation is also necessary.

We have not fully resolved copyright protection on the internet either. This is suggested by the fact that a considerable number of websites simply copy texts from other sources, taking photographs or videos.

– When it comes to copyright protection on the internet, it is extremely important that there is an effective protection system at the international level. In this sense, as early as 1996, within WIPO, the World Intellectual Property Organization, two so-called internet treaties were adopted – the Copyright Treaty and the Performers and Producers of Phonograms Treaty. These treaties established the foundation for their protection on the internet at the international level. The idea was that there should be no distinction between the virtual and real world and that the principles that apply in the real world also apply on the internet. They are an upgrade of the Berne Convention for the Protection of Literary and Artistic Works from 1886, which is still in force today and obliges all parties to provide a certain minimum level of copyright protection. However, the actual possibilities for protecting copyright on the internet have significantly decreased compared to the real world; everything is much more accessible on the internet, easier to copy, etc. There were also ideas that simply placing something on the internet gives others the freedom to use it, but that is unacceptable. These ideas were particularly propagated by groups advocating for the copyleft system or the ideology of ‘cybernetic communism’. Essentially, it is about the non-recognition of copyright on the internet, and these groups hid behind the fight against large and powerful multinational companies, ignoring the protection of creative individuals – authors and performing artists.

Would the problem of copyright protection be easier to solve if the relationships between authors, artists, performers, and publishers, record labels… were better?

– Certainly! For any use of someone else’s creative works, it is essential that those who use them – publishers, producers – have regulated relationships with authors and performers through contracts. The positions in contracting are often unequal, especially when it comes to still unestablished and young artists. A good example is the late musician Prince, who, as a young man, found himself in a position where he had given all his rights to the producer in advance, which is why he tattooed the word ‘slave’ on his face years later.

We also have our ‘Princes’, and with the current Copyright Law, an attempt was made to improve the position of performing artists in relation to record labels, but the final word will be given by the Constitutional Court. What do you think, how will this end?

– The Copyright and Related Rights Act of 2021 implemented EU directives in the field of copyright, including the one on copyright in the single digital market, which established the principle of appropriate and proportionate compensation for authors and performing artists and obliged member states to establish a mechanism for achieving such compensation. The Croatian Record Industry Association was not satisfied with the provisions of our law and submitted a proposal to the Constitutional Court for the assessment of the constitutionality of the relevant legal provisions, accompanied by numerous media activities. Our law established a mechanism whereby, if an appropriate compensation for internet use for existing contracts is not negotiated between performers and record labels within three years of its adoption, that compensation will be achieved through a collective management organization. Namely, these are contracts that did not foresee compensation for internet use because, at the time of their conclusion, there was no knowledge of the internet, and it was difficult to even imagine. Who, for example, in the 1980s knew that YouTube, Deezer, or iTunes would exist? But even before the internet, it was necessary to obtain permission from authors and performing artists for the use of copyrighted works and performances. Therefore, it should truly be undisputed that record labels do not have the right to freely use the performances of performing artists, and they have very often done so by publishing on new media and internet platforms. A large number of performers, including those whose performances have good commercial success like those from the new wave, still do not benefit from having their performances on YouTube, Deezer, iTunes, etc. At the same time, I emphasize and repeat that even under the previous law, record labels had an obligation to pay for works published through digital means. Among other things, this is why the current law from 2021 established the described mechanism.

Read the entire interview in the new issue of the digital and printed edition of Lider.