Our Thoughts on Training Data andCopyright

Ryuhei Murakami
JIPA Frontier technology study team1

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member companies.
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Our Thoughts on Generative AI(1) Regarding machine learning for generative AI, Japan'scopyright law is not that "different" or "paradise" compared toother countries(2) When considering the applicability of copyright exception for
the use of copyrighted materials in machine learning, the mostimportant question is whether the learning was performed withthe “purpose” of outputting a similar work. We should be careful
in inferring “purpose” from “results”.
(3) Soft law measures are also important for opt-out problem andmachine learning from copyright-infringing materials.
3Our Thoughts on Generative AI（１） Regarding machine learning for generative AI, Japan'scopyright law is not that "different" or "paradisal" compared toother countries➢ Copyright law of Japan stipulates that copyrighted works can be used without theconsent of the right holder "as long as it is used for “non-enjoyment purpose” anddoes not unreasonably prejudice the interests of the copyright owner. And theexploitation of training data for AI machine learning is considered a typical example ofnon-enjoyment purpose use.
➢ Copyright law of Japan is sometimes referred to as a "machine learning paradise," buteven in machine learning, only if there is even a slight "purpose of enjoyment" at
the same time, permission from the right holder is required. In addition, it
should be noted that permission is required for any use that unreasonably harms theinterests of the copyright owner. In that sense, Copyright law of Japan is not that“different'' or “paradisal’ compared to other countries regarding generative AI.
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Our Thoughts on Generative AI（２）When considering the applicability of copyright exception for the use ofcopyrighted materials in machine learning, the most important question iswhether the learning was performed with the “purpose” of outputting a similarwork. We should be careful in inferring “purpose” from “results”.
➢ Recent deliberations within the Japanese government council (re)confirmed that the "nonenjoyment purpose" in machine learning is the absence of the “purpose” of expressing thesubstantial similarity of training data in the output.
➢ However, in reality, whether or not there is a "non-enjoyment purpose" is inferred based onthe "result" of to what extent the AI developed based on the training data generates thecontents which are substantially similar to the works contained in the training data.
➢ Although we do not deny that such "inference" is necessary for the finding of such "purpose",
we argue that such inference should be made with caution, and the key factors of suchinference should be clarified given that there are also AIs such as the foundation model which
are developed without a specific purpose. We have expressed our that opinion in publiccomments to the government recently.
➢ We think it is possible that similar arguments can be applied to other countries.
5Our Thoughts on Generative AI（３）Soft law measures are also important for opt-out problem and machinelearning from copyright-infringing materials.
➢ Based on recent deliberations within the Japanese government council, the council expressed
its view that exploiting training data from the internet by ignoring opt-out mechanisms such asrobots.txt in machine learning, as well as exploiting training data containing copyright infringing
materials, is not necessarily and directly considered to “unreasonably prejudice the interests ofthe copyright owner”. There are opinions from the user side that this conclusion is a reasonableinterpretation given the purpose of the legislation and the way of the provision is written, while
there are also opposing opinion from right holder side.
➢ In addition to the above situation, there are also no established rules and practices for rights
holders to opt-out (opt-out measure using robots.txt also has its limits) , and there are somecases where it is difficult to distinguish between infringing content and non-infringing content.
We argue that it is possible to take soft law measures such as issuing international guidelines
to keep balance between not causing chilling effect to users/developers and respecting
the will of rights holders. This argument can be applied to other countries.

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Thank you for your attention!