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Member only guide to the Australian book industry.
MIN READ
Over the last several months there has been increasing author concern as major educational publishers, such as Taylor and Francis and Wiley, have made licensing deals with AI developers, allowing use of authors’ work to train generative AI models. With limited or in some cases no prior consultation with authors, and unclear parameters around remuneration and protection of copyright and moral rights, these deals are likely to have an impact on authors’ livelihoods. While licensing has primarily occurred in the education sector, with the recent news that Dutch trade publishers will start using AI to translate authors’ works, we believe it is vital for all authors and illustrators to start speaking to their publishers about generative AI and set out their wishes in their publishing agreements.
We appreciate that AI represents new opportunities and we support appropriate licensing. It’s our view, however, that publishers must consult authors, as copyright owners, and ensure they are transparent about AI deals, have secured consent, and agree upon fair remuneration.
Whether you have already signed a contract with a publisher, or you are looking to, here are the key questions you should ask your publisher about generative AI:
1. What are your intentions in respect of using my work to train AI models? Do you consider our current publishing agreement grants you the rights to sublicense my work for AI training without my consent?
The ASA is deeply concerned about any assumption that standard publishing agreements granting broad rights extend to licensing an author’s work for AI training purposes, without that author’s express consent. The vast majority of authors may have entered publishing agreements at a time when generative AI was not even contemplated.
2. Can I opt out of any use of my work for AI training? If not, why not?
While we understand that providing opt outs may minimise the viability for licensing arrangements for the publisher, as an author or creator, you should have the right to have a say in how your work is used. This is an entirely revolutionary use of authors’ and illustrators’ work and this technology not only has the potential to supplant creators but to severely impact their future earnings.
3. If you intend to use my work to train AI, how do you propose to protect my copyright and moral rights?
Your moral rights include a right of attribution, meaning you are appropriately credited when your work is used, and a right of integrity governing how your work is used. Your right of integrity ensures your work is not treated in any way that harms your reputation. The propensity for AI tools to hallucinate and falsely attribute work to others, or reproduce their work, either partially or substantially, without attribution at all, is high. What’s more, a number of AI experts strongly maintain that regurgitation is a problem that cannot be solved and even Big Tech has acknowledged that their guardrails against regurgitation – such as Amazon’s “memory suppression” technology – is not foolproof. If your publisher has entered into a licensing deal with AI companies, it’s essential to understand how they have proposed to protect your rights under this arrangement.
4. In what way are you already using AI in the production and dissemination of books? Is the AI proprietary? Has the generative AI model you’re using been built off of a foundational model?
AI tools can be used for a wide variety of tasks in publishing to assist in efficiency and productivity. Publishers may be using AI in the development of marketing copy or other assets associated with an author’s book.
Authors and publishers ought to agree if and how generative AI tools might be used in the production of their books. Given the uncertain provenance of generative AI and the legal and ethical concerns raised, authors as well as publishers are open to criticism and at risk of brand damage if AI is used.
Even where a publisher is using a proprietary generative AI model or a closed system, if that model is based on an off the shelf foundational model, like GPT or Llama, the ethical issues remain as foundational models have been developed by scraping authors’ and illustrators’ work without permission or compensation.
5. How will you fairly remunerate me for revenue earned by licensing my work for AI training purposes?
We suggest that authors specifically ask for written confirmation as to their entitlement to a share of revenue, and importantly, how their share will be calculated. Does the publisher promise to account regularly and transparently, as it does for all other revenue earned under your contract? How will any disagreement or dispute over revenue splits be determined? If you need guidance, contact Authors Legal.
Authors are the backbone of publishing; it is on their intellectual property that the book industry is built. This is why we cannot emphasise enough the need to protect their rights and livelihoods, unique creative skills, identity and voice, and personal data, in order to foster an environment in which they can afford to continue to write and create.
