Generative AI, Copyright and Emancipation: The Case of Digital Art

Abstract

The emancipatory effect of copyright on the lives of creators has long been hindered by the concentration of rights by powerful entities that can hold creativity hostage through exclusive rights over countless cultural references. Exceptions to copyright have played an important counter-hegemonic role, supporting what we might call a public domain counterprinciple. The recent explosion of generative artificial intelligence (GenAI) upends this scenario, with creators bringing copyright infringement claims to the courts to determine, inter alia, the existence and relevance of copying in the training process and whether AI outputs qualify as derivative works. Using digital art as an example, this article assesses these dynamics from the perspective of emancipation, considering the interplay of copyright rules, exceptions, principles and counterprinciples, and seeks to devise pathways, within and outside copyright, to address the challenges posed to creators by GenAI.