On September 11, 2023, United Daily News (UDN) featured an article titled “Refusing to Tutor AI, Taiwan’s Artist Voiced for the First Time,” authored by renowned cultural journalist Wan-Chien CHEN (Ms.). The article reported the recent announcement by Taiwanese artist Po-Hsun HUANG (Mr.), who has declared his opposition to the use of AI systems, machine learning modules, datasets, or related technologies to exploit, copy, analyze, or learn from his art works without his explicit written license.
Huang’s announcement, which serves as a preemptive warning to AI users, was published on his Facebook page on August 15, 2023. He is currently hosting a solo exhibition at the Tainan Art Museum.
Huang’s action aligns with a growing international legal movement among visual artists, aiming to curb AI web scrapers and AI image generators. While the possibility of overseas Taiwanese artists having joined this movement before Huang cannot be ruled out, Huang’s announcement has undoubtedly ignited a new conversation in both art circles and the legal world.
Although artists can use technological measures such as digital cloak software like Glaze and PhotoGuard to thwart AI scraping, a legal question remains to be answered: Do artists have the right to prohibit AI from collecting, analyzing, and training on the pixel information within their publicly accessible works?
As of now, no court judgments have come to the writer’s attention that address this question. Further, Taiwan does not currently have specific laws or regulations governing AI or related legal issues (although it is reported that the Government will soon release the first draft of the Artificial Intelligence Basic Law.) So the question can be answered only within the current legal regime, especially the Copyright Act, the general tort rules in the Civil Code, and possibly also the Fair Trade Act.
However, the Taiwan IP Office (TIPO) had expressed their views on this question before Huang posted his announcement. TIPO publishes explanatory letters to address copyright-related inquiries from the public, and they have ventured into AI-related questions since 2018, like the following two.
TIPO Explanatory Letter No. 1111212 (12 Dec. 2022)
Regarding the use of the AI art generation tool “Midjourney,” which leverages artificial intelligence to access online resources and learn from online works of artists or illustrators through algorithms, it might involve “reproduction” of others’ works. Unless it falls within the scope of fair use as defined by the Copyright Act, obtaining consent or license from the copyright holder is necessary before such usage. Determining whether it qualifies as “fair use” requires a comprehensive evaluation of all factors on a case-by-case basis, and there is no fixed standard.
Under Article 10-1 of the Copyright Act, copyright protection applies to the “expression” of ideas or concepts (e.g., the artwork itself), not the ideas or concepts themselves (e.g., artistic style, manner). Therefore, an AI-generated result does not give rise to copyright infringement if it simply embodies an artist’s specific “style” while differing from any of the artist’s previous works (emphases added by the writer).
TIPO Explanatory Letter No. 1120317 (17 Mar. 2023)
Training AI to generate a multitude of images in a similar style with unlicensed content from artists’ works may involve reproduction of the artists’ works during the process of collecting training data. In the absence of consent or license from the copyright holders, such conduct constitutes copyright infringement and can give rise to civil and criminal liabilities, unless it falls within the scope of fair use as defined by the Copyright Act.
The same-style AI-generated images produced by machine learning process are not subject to copyright protection since these results are generated solely through AI technology and lack human mental creation. Neither the owner of the AI program nor the individuals utilizing the AI technology can claim to be the copyright holders of these automatically generated images (emphases added by the writer).
While TIPO’s opinions do not bind the courts and might have limited influence on TIPO’s copyright practices (given that Taiwan abolished copyright registration system in 1998), they are still useful for us to grasp the views of some of the best minds of Taiwan’s IP community.
TIPO might recalibrate its stance on this emerging issue following the outcomes of decisions by Taiwan or foreign courts, if they are accepted within the global IP community. In the closing paragraphs of both Explanatory Letters, TIPO referenced pending lawsuits targeting image generator AI (e.g., Midjourney, Dall-E, and Stable Diffusion), encouraging Taiwan’s public to monitor these lawsuits’ developments.