May 17, 2023
Opinion on the Use of News Content by Generative AI
The Japan Newspaper Publishers & Editors Association

Because of the rapid development of generative artificial intelligence (AI) technology,
improved convenience in various aspects of society is expected. On the other hand, there
are negative effects such as unauthorized use of copyrighted works and other content byAI, or inappropriate use of AI. Laws and social systems cannot yet catch up with theadvances in AI technology. In addition, information disclosure by the companies
developing AI is not sufficient. Challenges have arisen from the perspective of protecting
the healthy discourse space that underpins democracy. We state here our opinion about
concerns in the press-related field.

(1) Disruption of discourse space and social disturbanceLeading generative AI can generate answers as if conversing with a human. However,they often contain mistakes and inaccurate information and there is a danger of countlessusers believing the AI’s false answers.
The ability of AI to generate a large number of articles in a short time can be exploited tospread disinformation, harmful information, or politically motivated information tomislead public opinion, largely on the internet discourse space. Also it is possible to massproduce new articles by combining multiple articles from news companies and slightly
changing the wording. We have already seen a phenomenon known as “trend blogging,”
through which a large number of articles of uncertain authorship and content appear on
the internet and are highly ranked in search results. If unregulated development proceeds,
there are concerns that AI may exacerbate this kind of behavior.
If such disruption of the discourse space proceeds, it will lead to social disturbance. It
cannot be overlooked in terms of protecting democracy.

(2) Concerns about protection of personal information
Generative AI training uses vast amounts of information on the internet and is likely toinclude “sensitive personal information,” as defined by Japan’s Act on the Protection of1

Personal Information. In principle, the acquisition itself of sensitive personal information
is prohibited without the consent of the individual concerned, but there is a risk that AI
may include such information in its answers.
If the companies developing and providing AI provide services using information on theInternet without permission and in an unregulated manner, without sufficientconsideration on the ethics and responsibilities essential to deal with information, thelegislation of personal information protection would be undermined. We are seriously
concerned about this situation.
At the end of March, the Italian government temporarily banned the use of ChatGPT,provided by the US company OpenAI, indicating suspicions that its collection and use of
personal data violated personal information protection laws.
The current Japanese Act on the Protection of Personal Information is not sufficient toapply to cases of AI answers containing sensitive personal information.

(3) Problems of the current Copyright Act and of the process leading to law amendments
As concerns about the unauthorized and unregulated use of news content by AI are
growing in other countries, it has led to multiple lawsuits against AI developers in the USand Europe. In March, the US Copyright Office indicated its intention to examine how toapply legal discipline to generative AI. In April, the News/Media Alliance (NMA), anindustry association consisting of about 2,000 newspaper and magazine publishers in theUS, stated “Generative AI (GAI) developers and deployers should not use publisher
Intellectual Property (IP) without permission, and publishers should have the right tonegotiate for fair compensation for use of their IP by these developers” and “Absentpermission and specific licenses, GAI systems are not simply using publishers’ content,
they are stealing it.”According to experts, although the Directive on Copyright in the Digital Single Marketof the European Union (EU) has provisions to limit the rights of copyright owners as inJapan, right holders can refuse (opt-out of) commercial use. In the UK, the limitation ofcopyright is restricted to research purposes only and not allowed for commercial use.
Compared to these rules, Japan’s Copyright Act is extremely broad in its coverage for AImachine learning.
In Japan, amendment of the Copyright Act in 2018 legalized in principle the collection
and use of existing copyrighted works without permission in the process of developing2

AI and other technologies (Article 30-4 of the Act). Restrictions on commercial use andopt-out as in the EU were not established. The reason for this is as follows: At the time of
the law amendment, use for technological development was considered not to be people
enjoying copyrighted works through their own senses. Therefore this use was notconsidered to be impairing the right holders' opportunity for compensation and, as longas it would not harm the interests of right holders, protection of right holders such as optout was deemed unnecessary.
However, at the time, the negative effects of advanced AI such as generative AI were notfully envisioned. The emphasis during the legislative process was on the amendment of
the law so as to encourage innovation originating from Japan, specifically Japanese searchengine development. As there were only a few references to AI, there was no indicationfrom the government that AI could generate new expressive work and threaten rightholders. So the right holders did not believe that the use of copyrighted works fortechnological development would become a problem, and for this reason, the law wasamended to favor AI development without major debate in the Diet.

(4) Issues about copyrighted works of news organizations
News companies such as newspapers and news agencies have copyrights and other legal
rights over many articles, photographs, images, and other content. However, there isgrowing concern about unauthorized and unregulated use of such news content by AI.
Newspaper companies have long provided databases containing past newspaper pages
and articles for a fee, and in recent years, they have also sold article data for AI
development. If AI imports large quantities of articles, photos, images, and other datafrom news organizations’ digital news sites without permission, commercial AI services
for third parties developing it could conflict with the existing database sales market and“unreasonably prejudice the interests of the copyright owner” (Article 30-4 of the Act).
Also, even if all or part of a particular article communicates nothing further than facts andhardly constitutes a copyright, many contents deserve legal protection because of theeffort and cost invested by the newspaper companies. Even if an AI collects and uses only
the factual part, it does not mean it will always be legal.
If a user operates a developed AI and generates new articles or images by inputting
specific keywords or instructions, and the outputted content relies on and is highly similar
to original articles or images, it would be a violation of the Copyright Act.

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(5) Opaque operation status and insufficient information disclosure to right holders
The actual usage of news content by AI is a black box, so cannot be known. As countless
AI services around the world can be operated online by ordinary users to generate articles
and images, it is difficult to know exactly how each service collects and uses news content
and how users use it. Even if inappropriate use is found, there are no establishedprocedures or rules on how to remove the relevant data from the AI. So there must berules requiring AI developers to disclose and notify, and to make partly transparent, about
which news organizations’ content has been used for training data.
Large-scale machine learning by AI and the use of developed AI are increasingly being
conducted on the Internet. Since information is exchanged across national borders, it canbe said to be necessary to harmonize the legal systems of different countries whiledeveloping legislation.

As indicated above, if unauthorized and unregulated use of news content by AI becomesa fait accompli, it could cause huge damage to the business of news organizations andmake it difficult for them to continue providing quality news content. If quality news
content, which underpins democracy, decreases, the public’s right to know may behampered.
Generative AI is not only a problem for the news industry, but a common and urgent issue
for various creative industries that produce copyrighted works such as literature, comics,animation, videos, and music.
The Japanese government should hasten institutional measures to make generative AI
harmonize with society from the perspective of the entire legal system, including theCopyright Act and the Act on the Protection of Personal Information.
At the House of Councillors’ Accounts Committee on April 3, issues under the Copyright
Act were pointed out as negative aspects of AI, and Japan’s Prime Minister KISHIDA
Fumio stated “I am aware of the suggestion that there are issues that have not yet beensorted out.” On April 30, the G7 Digital and Technology Ministers’ Meeting in Takasaki
City adopted a ministerial declaration on AI which mentions the necessity to “continue
promoting safety and trust as these technologies develop,” indicating such issues as
dealing with disinformation and the protection of intellectual property rights and personal
data. We hope that the Summit Meeting in Hiroshima City on May 19-21 will also havea full discussion on how to achieve responsible AI.

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Even if lawsuits develop over rights infringement by and the legality of generative AI,
judicial precedent would take years to accumulate in Japan, Europe and the US. To ensure
the rights of right holders are respected, we strongly hope that the Japanese governmentand others will examine appropriate measures before unauthorized and unregulated useof news content by AI becomes a fait accompli.

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