After joining an EU Commission stakeholder meeting on copyright and AI in the audiovisual sector, EGDF provided a written statement on the topic.
The European games industry is the digital forerunner of cultural and creative industries.
The game industry paves the way for the exploitation of new technological innovation and the adaptation of new business models and pushes the boundaries of digital games as an artistic audiovisual medium. Its success is based on keeping ideas and concepts free for everyone to experiment and innovate and ensuring clear and predictable ways to enforce IP rights. For decades, the games industry has been using and experimenting with machine learning-based procedural content creation, AI-generated content, crowd-sourced user-generated fan content, and collectively created open-source code. The new generative AI tools are, therefore, nothing new. Still, although humans will make key artistic decisions for years to come, the EU must build a vision for the new Era of creative content where the majority of the creative content by volume will not be human-made.
The success of the games industry is not just based on the rapid uptake of new AI tools. Unlike many other cultural and creative industries, the games industry builds its own AI tools and works closely with several third-party AI tool developers. Generative AI tools are just one of the many AI tools used in game production and marketing.
EGDF approach on the protection of IP in the AI-driven era.
A new AI-driven era for copyright protection does not mean the end of copyright. It just means that the majority of the content available for humans is not copyright protected. In this new reality, trademarks and design rights will play a more and more crucial role in protecting and controlling the game IPs. In practice, this means:
- A new AI-driven era for copyright protection means new regulatory uncertainty hindering the use of new AI tools. Due to regulatory uncertainty, many game developer studios are limiting the use of AI tools to minimise legal risks. At the same time, the regulatory uncertainty is pushing game developers and publishers to identify the key creative artistic elements of their IP in a game and use even more resources to protect and control them through different means, from copyrights and trademarks to neighbouring and ancillary rights (when available), design rights, internal policies and fan content policies.
- A new AI-driven era for copyright protection means a new approach to IP. Step by step, game developer studios are moving their focus from the protection of IP to the control of IP. In the new reality, the focus of game developer studios is on finding the optimal balance between enabling collective efforts of their fan communities to promote their games with their own, sometimes AI-generated, fan content and maximising the control of their IP. One promising way to do this is through fan content policies.
- The best way to protect IP and trade secrets while using AI tools is not through regulation but through proprietary AI tools. SME game developer studios rely on third-party AI tools tailored for their internal use through technological (e.g. run on internal servers) and contractual (e.g. data is not used for further training of AI models) safeguards. Consequently, many game developer studios have built internal policies and guidelines on what kind of work can be uploaded to publicly available AI tools (and thus used for their training) and what type of work can only be uploaded to proprietary tools to ensure, for example, the protection of their trade secrets.
EGDF calls on the EU Commission to widen its focus from the protection of copyrights to the control of the IP
EGDF calls on the Commission to focus on the following priorities:
- The EU needs a legal framework that keeps human-created copyright-protected content competitive. It is thus crucial to ensure that the use of human-created artistic content is as easy and smooth as the use of AI-generated content. Thus, the EU regulatory framework should both secure fair compensation for the rightsholders and, at the same time, ensure that the use of human-created copyright-protected content does not become so complex, burdensome and risky that its markets will be minimal.
- The EU must carefully balance the protection of artistic authors against their contractual freedom and freedom to conduct business. The EU must respect the rights of these leading digital artistic auteurs to contractually allow the use of their artistic content for AI training in the terms they find best fit for them. Similarly, those artistic creators who prefer to operate outside collective rights management systems and license their AI-enhanced content directly to global markets through game assets stores should be allowed to do so.
- The EU must widen its focus from the use of copyright-protected works in AI training to the protection of trademarks and design rights in a digital environment. The EU must widen its focus on creating a clear framework for trademark-protected content and content protected by design rights for training AI, as they will be far more critical for the protection and control of IP in the new AI-driven era.
- The EU must carefully balance the protection of the trademark and design rights holders against their freedom to conduct business. IP owner should always have exclusive control over their IP. The commission should not push forward any forced collective licensing system for AI tools, as it would significantly hinder those who prefer their IPs to be available on AI tools as efficiently as possible. For those who do not want their IPs to be used for training AI, the current opt-out mechanisms are enough.
- The EU needs to create a specific legal framework for unfair, non-negotiable standard contracts used by AI tool developers. Currently, AI tools rarely include any privacy or confidentially agreements in their standard contract terms. Even more importantly, the differences between the non-negotiable contract terms, for example, popular generative AI tool developers are forcing on their users, are enormous. Europe needs a copyright framework that protects creators from unfair forced licensing through standard, non-negotiable contract terms.
Read the full statement form here: https://www.egdf.eu/wp-content/uploads/2023/05/202305-EGDF-response-on-the-exploratory-consultation-on-the-future-of-the-electronic-communications-sector-and-its-infrastructure.pdf
You can access the full EGDF approach on copyright and AI from here: https://www.egdf.eu/documentation/5-fair-digital-markets/5-a-digital-ready-copyright-framework/copyright-and-ai/