Fair Use or Foul Play?
- Mckayla Mccloskey
- Mar 27, 2025
- 4 min read
For years now, AI has been the 'it' technology, but recent legal developments are raising the question: is it right? The IP legal sector is demonstrating that current standards for AI development are unethical and generally a debacle of infringement. 2025 has opened with a strong push from tech companies for the US and UK governments to pass proposals which would allow firms to access copyrighted works from a plethora of creative industries to train systems. This post will investigate the discourse and conclude that the government must act to uphold creators’ rights to preserve creative ingenuity and integrity.
Most recently, the UK government has revived a 2022 proposal that would allow AI companies to scrape copyrighted content on a massive scale during system training. As Edward Zitron explains in an article from late February 2025, AI models “require endless amounts of training data, supplies of which have been running out for a long time.” It is the scarcity of training material which has created a tension between technological innovation and IP law. This tension is erupting into contentious proposals, where the governments may allow firms to bypass copyrights altogether. The argumentative premise is that the longstanding foundation of copyright law is preventing technological progress.
The UK proposal would implement a system like those being proposed by AI companies and the Trump administration: one of fair use. As Kate Knibbs for WIRED eloquently summarises, the fair use doctrine is “the idea…that sometimes it’s legally permissible to use copyrighted works without permission. This concept is best illustrated by one of the first successful cases on copyright infringement against an AI company in the US: Thomson Reuters Enterprise Centre GMBH v. Ross Intelligence Inc.. Here, Thomson Reuters filed suit, claiming that AI firm Ross Intelligence had utilised its copyrighted legal research material. The court ruled in Reuters’s favour, based primarily upon a four-factor test for fair use:
The reason for the work
Nature of the work
The amount of the work used which is copyrighted
The impact the derivative work has on the economic value of the copyrighted work.
US Circuit Court Judge Stephanos Bibas stated in his ruling that the fourth element was significant in the case. The court ruled with Reuter primarily because it was clear that Ross intended to compete with Westlaw, utilising their copyrighted materials to train and create a substitute for the program within the market. There is a multitude of US copyright cases against AI hitting the dockets, so this WIRED Tracker is a good place to start if you’re curious.
As expected, the UK scraping proposal is vehemently opposed by the creative industry. There are already significant challenges that creators face in protecting their work from unauthorised use in AI training. This is based primarily on the fact that AI has mass access to data through the internet. As Virginie Berger describes, it is “nearly impossible for individual creators to track where and how their work is being used.” The burden is solely on the creator to locate instances where their copyrighted work is utilised without permission and instigate legal action. The Government plans to allow AI firms to use such works, regardless of permission, unless explicit opt-out is recorded by the artist. Such an idea is infeasible given the already easy access to the information, and so it is, at best, politically placating words to disguise what Dame Caroline Dinenage is calling the ‘largest copyright heist in [the] world’s history.”
If the UK goes forward with the proposal and aligns itself with the AI industry, it risks alienating itself. The public is not happy, and rightfully so. The proposal risks bringing economic harm. The UK music industry alone accounts for over £7.6 billion of the UK economy. Free use of musicians’ copyrighted content will not only threaten creators’ finances but also the nations. Some may claim that these economic risks will be outweighed by the boost from AI advancements. However, AI is an industry currently haemorrhaging funds, as expertly outlined in Edward Zitron’s article. Investors are sceptical of future returns, and there is even speculation that Microsoft is reducing its investment in developing AI technology.
In addition to economic impacts, there are cultural ones as well. Creativity is essential to society’s enrichment. Intellectual property law incentivises innovation, providing a way for creators to sustain themselves while contributing to humanity’s betterment. Art in all its forms is a way to convey emotion and experience in a medium that is accessible to all despite education or nationality. Free use will dilute the authenticity of creative contributions. As British icon Simon Cowell puts it, “AI shouldn’t be able to steal the talent of those humans who created the magic in the first place.” AI lacks innovation: it doesn’t create novel works. Instead, it is akin to plagiarism.
The US and UK must think carefully as they consider sanctioning copyright infringement. They should look to the European Commission’s AI Act and the subsequent effort to establish a panel to review and implement proposals related to AI in ways that uphold standards of law and ethics for the greater good of the communities it represents. The goal is to enhance humanity. Are AI’s derivative outputs in line with this goal? Let me know what you think.
To support the fight to protect copyrighted work spread the message: MAKE IT FAIR!
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