Prosecraft has infuriated authors by using their books without consent – but what does copyright law say?

• Prosecraft requires an algorithm to crawl through millions of words of text to produce an analysis of the language.
• It drew on “more than 25,000 books” to allow authors to compare their text to writers they admire.
• Not by faux data analysis.” Smith believed Prosecraft could help uncover the intricacies of the writing techniques of famous authors that their otherwise dense prose might obscure.
• Read more:
  Explainer: what is 'fair dealing' and when can you copy without permission?

Shadow libraries: the ‘Achilles heel’ of AI

• None of this would be possible without a “shadow library”: the Achilles’ heel of AI technologies.
• In copyright terms, the copying of a book so it can be stored in a shadow library is an act of infringement.
• Yet, thousands of authors suing the creator of a shadow library is a different question altogether.

Copyright depends on human actions

• However, if the AI technology they have developed then trawls through that shadow library to produce many different forms of language analysis, this is not likely to be an infringement of copyright: almost all the relevant laws contemplate human actions.
• The opening line of the infringement provisions of the US Copyright Act reads, “Anyone who violates any of the exclusive rights of the copyright owner …” (Emphasis added.)
• Further references within section 501 of the US Copyright Act also make the assumption of human action and human agency quite plain.
• Fair use is an open-ended exception where the use of a copyright work is considered against four factors.

‘Transformative use’ and Australian law

• Australia amended its laws after the Australia-US Free Trade Agreement, to mirror some of the principles of US copyright law.
• In amending its laws, Australia legislated that parody or satire could form the basis of a fair dealing exception.
• Australia has either missed a trick or dodged a bullet by failing to include transformative use as a fair dealing exception.