Swisscopyright: Position on generative AI and its output

Swisscopyright is the association of the Swiss collective rights management organisations ProLitteris, SSA, SUISA, Suissimage and SWISSPERFORM. It is committed to safeguarding authors’ rights and neighbouring rights and defending the interests of rightholders. Swisscopyright’s position paper sets out its position and demands with regard to the regulation of artificial intelligence (AI). The existing Federal Copyright Act is the foundation on which to build up such regulation in Switzerland. The collective rights management organisations can serve as central licensing offices for certain uses by generative AI systems.

Works of literature and the arts are immaterial assets whose ownership is assigned by law. Copyright protection incentivises creativity, encourages the creative industries, and guarantees cultural diversity. Legal incentives would be ineffective, however, if comparable AI-generated output were to enter into competition with works created by humans. The result would be a dysfunctional, off-balance creative market, and would pave the way to market failure. 

This must be prevented. Therefore, AI regulation in the cultural sector should be guided by the following principles:

• Copyright law incentivises human creation and ensures broad access to works and performances. The Federal Copyright Act (CopA) is a viable working basis even under AI conditions. If the Copyright Act undergoes revision, however, it is imperative that the principle of remunerating human creativity also be enshrined in the future law. Exceptions to copyright and royalty-free limitation clauses should be reduced to a minimum or consistently accompanied by remuneration claims.
• A protective system that only works in theory is futile. Changes in practice are needed with regard to the acquisition by generative AI systems of the rights of use to protected works and performances. Compliance obligations (verification and respect of copyrights) and information requirements concerning the works and services used must be introduced, as must compulsory labelling for the use of AI generative systems.
• The holders of copyrights and neighbouring rights must be compensated for the loss of income caused by AI generated output. The remuneration to be negotiated for the training of generative AI models must be based on the revenues of the AI-systems. Authors must participate in the revenues of generative AI systems in the same way as they do in the commercial licensing business.
• Regulation must always reflect the relevance for AI providers of training their models on pre-existing works and performances. It must stipulate the obligation to co-operate with the collective rights management organisations. This applies not only to the legalising of AI input but to the transparent communication of usage data and to technologically exploitable data transfers. For practical reasons, mass utilisations can only be managed collectively (by the collective rights management organisations).

Since effective and efficient licensing models are of paramount importance, the collective rights management organisations, as well-tested practitioners of copyright law, must be involved in developing the regulatory environment. These organisations ensure that the rights and interests of copyright and neighbouring rights owners are duly protected.  As practitioners, the collecting societies appeal to all stakeholders to work with them in defining the future framework conditions with a view to encouraging innovation and safeguarding existing rights.

The position paper can be found on the Swisscopyright website