The ASA, representing over 4,200 writers and illustrators, has strongly opposed the Productivity Commission’s proposal for a Text and Data Mining (TDM) exception to copyright laws, calling for the introduction of a mandatory Code of Conduct which sets clear, enforceable ground rules for AI companies operating in Australia. 

In a submission to the Productivity Commission’s Harnessing Data and Digital Technology Interim Inquiry Report (Interim Report), the ASA has rejected the introduction of a copyright exception which would allow for AI training, on the basis that it is unnecessary and unjustified, highlighting the economic impact on creators, as well as the cultural implications for Australia. 

‘Instead of seeking ways to legitimise the greatest act of copyright theft in history, the Commission should support the ethical, responsible, and sustainable development of AI, which relies upon the appropriate licensing of copyright work,’ says ASA CEO Lucy Hayward. ‘Big Tech’s past conduct demonstrates they will favour unpaid, extractive practices – including using pirated material – if they can get away with it. The government has the right and the obligation to set the standards we impose on these companies in Australia, to protect creators’ livelihoods, safeguard Australians against misconduct, and ensure the future of Australian culture.’

The ASA submission raises key omissions in the Productivity Commission’s Interim Report, including a lack of acknowledgement about the extent to which freely using copyright works for training AI models is deeply contested and litigated worldwide, and, crucially, the lack of any analysis of the productivity of the copyright industries. 

The submission urges the Productivity Commission to abandon its proposal for a TDM exception, which would: destroy emerging, legitimate licensing markets; decrease productivity; breach our obligations under international treaty; undermine Indigenous Cultural and Intellectual Property; contradict the Government’s commitments made under the National Cultural Policy; and legitimise parasitic and unsustainable business models.

The Australian Government has already made its position clear: it supports copyright as the pay packet of Australia’s creators. The equitable path forward is to introduce policy measures that facilitate licensing, ensuring authors have the right to say yes or no to their work being used for AI training, and to be compensated for that use if they consent.

‘It is not in Australia’s national interest to enrich multinational companies at the cost of Australian creators. We’re not asking for anything unreasonable – simply that AI companies should license and pay for the copyright content that makes their technology possible,’ Hayward says. ‘The Productivity Commission should not support what amounts to wage theft for the creative industries as the path to greater productivity.’

The ASA submission calls for the introduction of a mandatory Code of Conduct that will require AI developers, as a condition of doing business in Australia, to:

• disclose the copyright works which have been used to train AI models.
• pay ongoing fair compensation to Australian creators whose works have already been ingested – and from whom it is too late to seek consent – for as long as their work remains ingested in the models.
• ensure that any use of Australian copyright material to train AI models is subject to licensing arrangements.

‘This is a watershed moment,’ Hayward says. ‘We have an opportunity to right this wrong and set an ethical and sustainable standard for AI development. With a mandatory Code of Conduct we can implement clear ground rules to counter the information asymmetry and profoundly unequal bargaining power between creators and Big Tech, and bring about voluntary licensing as a fairer solution than simply opening the door to the pillaging of our treasured Australian cultural output.’