A. The problem is obvious
1. Self-service: So far, the emergence and use of systems of generative artificial intelligence (AI) has been dominated by a massive and non-transparent, unsolicited and uncompensated use of works and performances.
2. Legal uncertainty: This practice is legally impermissible or, depending on the constellation and legal system, disputed. The exercise of technical power threatens human creativity without being legitimized to do so.
3. Market deficit: The boundless trawling of third-party works and performances harms authors, but also AI offerings. This is because they also work with intellectual property and need a transparent marketplace for content.
Let us acknowledge the problem! There is a lack of legal certainty, there are no negotiations and contracts and no ecosystem that can be further developed in the interests of all parties involved. All other significant industries are familiar with issues of compliance (observance of the law), differentiation (legal transactions concerning content), sustainability and ethics (how is tomorrow’s raw material created?). Creativity can be replaced and displaced, including by machines, and we must be prepared for this. But the applicable law and its advantages deserve respect and enforceability. The laws and the practice of AI systems must be supplemented to protect copyright. This is an advantage for Switzerland as an AI location.
B. Copyright has solutions
1. Copyright can handle technology. The Copyright Act and the practice of rights management are proven and flexible; for AI, statutory clarifications are needed for training (learning procedures for AI) and for retrieval (real-time queries by AI). Adjustments for specific areas and needs are possible and are part of the decades-long tradition of copyright, ultimately always to the benefit of all parties involved.
2. Collective licenses. In particular, extended collective licenses can be suitably adapted and negotiated. The instruments of tariffs and distribution regulations can be borrowed from mandatory collective management. In this way, AI can secure almost seamless works and performances in a defined field of application, at objectively appropriate and verifiable costs.
3. Collective management organizations. Supplementary rules in the Copyright Act (CopA) or in the ordinance can prescribe standards, disclosure obligations and additional requirements in order to maximize the efficiency and effectiveness of AI licenses. For example, the distribution of ProLitteris for media companies and media professionals works according to the simple principle of 50:50, which removes the need for contract analyses and distribution conflicts.
Let us shape the solution! Tailor-made interventions in the Copyright Act (CopA) are needed, just as earlier technologies also triggered them. The Swiss Federal Institute of Intellectual Property can design these adjustments in a targeted and balanced way with its professional expertise.
C. Tailoring licenses
1. Statutory basis for the rights (copyright and related rights) and for the form of exercising consents, differentiated as collective, statutory and individual licensing depending on the areas, e.g. for large music, film and publishing producers, for artists, for journalistic and for scientific publications.
2. Tailoring license models, among other things by collective management organizations and other institutions for rights and rights bundles. Some licenses are generally valid for almost everything, others individually specific for certain categories or holders of rights, works and performances. Proven statutory obligations regarding transparency, negotiation, approval and legal certainty of tariffs and contracts.
3. Examining privileges for access to non-market content. This should be done without general freedoms for research, because generative AI is a product, not just a gain in knowledge, and ultimately always appears commercially and in competition with human creativity and communication (co-financing, spin-offs, market entry and market impact).
Let us license artificial intelligence! Thanks to partnerships and contracts, a market for AI content is emerging, which is already becoming apparent internationally. Flanking measures are needed to create transparency and to apply and enforce Swiss law with protection for Switzerland as a business location. Exclusions of areas from AI training must be possible.