Altering copyright law to allow AI companies to scrape music, books and journalism could trigger a constitutional breach, Coalition senators and the recording industry have warned, as they raise new fears it could open Australia to massive legal action and compensation claims from rights holders worldwide. The attorney general’s department admitted it was “extremely alive” to the issue, and Australia’s leading constitutional expert, Anne Twomey, agreed there was “potentially” a concern – depending how legislation was drafted – that granting AI companies permission to scrape copyrighted material from the internet could amount to an acquisition of property by the government. In a simmering debate centred on the same legal point as the movie The Castle, the question of acquiring property “on just terms” is emerging as a key concern amid furious lobbying from tech companies and rights holders ahead of a looming federal government announcement on AI.
Michaelia Cash, the shadow attorney general, said the government should not “sell out Australian creators and rights holders in the rush to entice AI investment”. Labor is mulling copyright changes in a suite of reforms around AI, including datacentres, online safety, workforce, energy and the economy. While the prime minister, Anthony Albanese, has promised “the strongest possible protection”, warning it would be “theft” if creatives weren’t paid for their work, creative industries are alarmed that AI companies have requested a weakening of copyright law to train on Australian material.
Some AI companies have rejected making licensing agreements under existing copyright law, saying it was too difficult. Anthropic suggested an “opt-out” model which would allow it to scrape content unless a rightholder deployed digital protections signaling an objection. A fresh concern being aired by sceptics and creatives is that any weakening of copyright to benefit AI could represent a breach of section 51 of the constitution, which allows the commonwealth to make laws about “the acquisition of property on just terms”.
Anne Twomey, professor emerita of law at the University of Sydney, said the issue was exceedingly complex and noted no legislative proposal had been aired. She said numerous cases had come before the high court relating to copyright and acquisition of property, including about video games, cigarette plain packaging and cassette tapes, with varying outcomes. Twomey expected the federal government would be hyperaware of such concerns, but said granting a new right to AI companies to use copyrighted material and diminishing the rights of copyright holders could “potentially” trigger constitutional issues.
She said any change allowing Australia to host AI companies training on international data could potentially create grounds for global rights holders to take legal action here. Cadell told Guardian Australia he worried about such a development opening the federal government to liability for “the biggest compensation rights case in history”. Cadell raised his concerns about the constitution in a committee hearing with the attorney general’s department on Friday, in which officials said they were conscious of those issues.
Officials did not directly answer when Cadell asked about international implications and liability for compensation to foreign rights holders. Annabelle Herd, the CEO of the Australian Recording Industry Association, claimed any proposal to allow AI companies to scrape data was “clearly an acquisition of property”. He also raised concern about international ramifications were Australia to change copyright law, saying it would not only apply to Australian artists and copyright owners.
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