Call for AI compensation fund in copyright fight
The Copyright Agency has called for a government-mandated scheme to compensate Australian creators for the predations of AI companies overseas.
The call comes after Atlassian co-founder Scott Farquhar last week demanded an overhaul of copyright laws that he said were preventing billions of dollars of AI investment into Australia.
Scott Farquhar gives his Press Club speech
The Copyright Agency – a not-for-profit that distributes funds to thousands of copyright holders in Australia – rejected Farquhar’s idea and said the government should be charging big AI companies instead.
“It is not necessary, or in the interest of Australians, to change Australia’s copyright regime to benefit multinational tech companies,” Copyright Agency CEO Josephine Johnston told Mumbrella in a written statement.
“There are particular issues where Australian content has been used — nearly always without permission — for AI model training overseas. Due to the difficulties for local creators pursuing remedies in other jurisdictions against some of the world’s largest companies, we ask the Government to intervene to introduce a new compensation regime.”
The agency made the compensation call after being contacted by Mumbrella for comment on Farquhar’s demand for copyright change.
Josephine Johnston
At issue is the fact that Australian copyright laws are tighter than similar legal jurisdictions overseas, with limited exceptions for “fair dealing” rather than the “fair use” and text-and-data (TDM) carve-outs seen in the US, UK and EU.
“This is a barrier to AI companies who want to train or host their models in Australia. And this is even a barrier to Australian-born companies who want to build AI models here,” Farquhar told the National Press Club.
“ Fixing this one thing could unlock billions of dollars of foreign investment in Australia.”
The software billionaire said he supported copyright and rights protection in general, but that Australian laws were ineffective because copyright holders had not seen “a single dollar of extra money as a result of our law”.
The Copyright Agency said the lack of income proved nothing.
“Australia can get the productivity gains that AI offers and ensure that those gains stay onshore and benefit Australians. That includes supporting, not dismantling, the symbiotic relationship between people working in creative industries and new technologies that are enhanced by their work.”
Meta and Anthropic were both found to have used millions of pirated books in LLM training sets (Midjourney)
Legal experts contacted by Mumbrella confirmed that Australia’s copyright laws are indeed out of step with many international jurisdictions, and that this may have kept international AI labs out of Australia.
In a written statement to Mumbrella, copyright lawyer Luke Hawthorne from King & Wood Mallesons said Australia was “an outlier” relying on “on a narrow set of specific statutory exceptions that don’t extend to large-scale computational uses of copyright material.”
“The Australian Law Reform Commission recommended adopting fair use in 2014 to modernise our framework, but those proposals stalled in the face of strong industry opposition and political inertia. As a result, developers and researchers risk allegations of copyright infringement. It’s a significant constraint on innovation, and without reform, Australia risks falling behind.”
He added that “those in the creative industries will strongly disagree.”
Hannah Marshall
Good Company Lawprincipal Hannah Marshall said the rights of content creators, and in particular news publishers, had to be taken into account.
“Considering the interests of the content creators is the primary counterbalance to what Scott Farquhar was saying about needing to relax the laws to enable the AI industry to thrive in Australia,” she said.
The results of two court cases in the US indicated AI companies would have a “much greater opportunity” if a fair use defence was introduced in Australia.
The cases involved book authors suing Meta and Anthropic for using pirated copies of their works and feeding them into LLMs. In both cases, the judges ruled that training an LLM with copyrighted works was sufficiently transformative that the fair use defence applied. It was also very important that no market impact had been proved by the authors.
Marshall was particularly concerned about the fate of news content, which is more vulnerable to AI hijack than many other forms of content because the information it contains – rather than its form – is what makes it valuable.
“ I have a lot of sympathy for the news industry and the kind of existential crisis that it faces in the digital world. And I can see why licensing [to AI companies] is so important and why a wide defence [the ‘fair dealing’ exemption to copyright] would not help them,” she said.
On the other hand, extending copyright or other intellectual property protections to include the information in news, rather than just the forms it takes, would be deeply problematic.
”At its heart, copyright law is not intended to protect an idea. It’s intended to protect the manifestation of an idea, the physical manifestation of an idea, and so to stretch beyond that raises a bunch of really interesting policy questions around innovation and the economic impacts of creating that wider level of protection. I don’t think that it would necessarily be a great idea.”
Marshall said that any reform of the legislation would be a long time coming.
”In terms of the Copyright Act itself not keeping pace with AI – get in line! How many laws have we got that are fundamentally undermined by the emergence of AI? Gosh, just addressing that single issue would take up the legislative agenda for a decade.”
The Copyright Agency’s call for a compensatory scheme set up by the federal government has echoes of the News Media Bargaining Code. That legislation was enacted in 2021 and has resulted in Meta and Google paying an estimated $600m to news publishers in the years since.
Payments made in the shadow of the Code – which has only ever operated as a backup threat and has not been invoked – have been characterised as private deals for news content. Meta did not renew its contracts when they expired in 2024, and Google has reduced its payments, apparently without consequence.
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