Thanks to Rachael and the team at UC’s OSC for sharing this document. I came away from it with a much better understanding of the concerns of libraries as they try to account for TDM and AI when negotiating licenses for electronic resources.

It does, however, raise a question for me about the other side of the fair use argument—namely, the rights of authors to not have their copyrighted works exploited by TDM and AI usage. This is especially pertinent in the humanities and social sciences where much of the OA scholarship is published with a CC BY NC-ND license because of authors’ (and publishers’) concerns about others profiting from derivative use of a work. Increasingly, I am hearing from authors who want to know the extent to which the “no derivatives” part of a CC license protects them against TDM and AI usage, specifically generative outputs. I’m curious to know what folks think about the fair use question when it comes to authors specifically.

The UC OSC document acknowledges publishers’ concerns about misuse of licensed materials but then it seems to brush those concerns aside on the grounds that publishers “already can—and do—impose robust and effective contractual restrictions” on such misuses. But the document also admits that “overall fair use of generative AI outputs cannot always be predicted in advance,” which of course is exactly what authors are concerned about—usage by AI that is unpredictable and perhaps impossible to keep track of because of the increasingly sophisticated nature of AI. How does one prove plagiarism when AI systems have ingested and learned from so much content that it’s impossible to tease out what came from each individual source?