Does generative AI copy? Rethinking the right to copy under copyright law

Abstract

Copyright-regulated reproduction should encompass both technological and economic elements. The technological element, which means the generation of a reproduction, determines whether a certain act constitutes reproduction. The economic element, which means the potential for public distribution and undermining copyright owners’ incentives by the generated reproduction, ascertains whether such an act of reproduction falls within copyright law's jurisdiction. We not only delineate the boundary of copyright-regulated reproduction but also elucidate the underlying rationale for the spectrum of reproduction regulated by presumption, reproduction regulated by exemption, and non-regulated reproduction. Accordingly, we analyze the regulatability of GenAI's reproduction of works throughout its stages. During the data acquisition and preprocessing stages, GenAI engages in reproduction with the technological element but lacks the economic element. During the training and generation stages, GenAI normally does not generate output similar to training data, thus initially lacking the technological element; in exceptional cases where GenAI generates output similar to prior works and possesses the technological element, copyright-regulated reproduction only occurs in the generation stage where the output has the potential for public distribution. Furthermore, we address the possible criticism that GenAI's unregulated reproduction would lead to an inequitable scenario by free riding on preexisting works.