Who's Afraid of John Churchman: The Shifting Tides of Creative Rights

John Churchman spent his life navigating the water with just the stars and a compass.? In 1790, he decided to share his knowledge through?Magnetic Atlas or Variation Chart, which became one of the first works to receive federal copyright under the newly enacted Copyright Act of 1790. This law was designed to ensure that in the age of reproduction, the creators themselves could profit from their intellectual property.

However, in 1790, individuals like Churchman were not amassing fortunes from their works. While the technology for printing existed, the market for books and charts was still relatively small, and distribution was limited.

In 1817, James and John Harper founded J. & J. Harper, which later became Harper & Brothers in 1833. This marked a significant development in the American publishing industry. Unlike individual creators such as John Churchman, who navigated the challenges of copyright as sole authors, Harper & Brothers represented the rise of a more industrialized publishing sector. They took on the role of distributing books on a much larger scale, investing in printing, marketing, and distribution, and assuming financial risks in exchange for the rights to publish and profit from authors' works. This shift signaled the start of a more industrial approach to copyright, where the focus was not only on protecting individual creators but also on establishing a robust market for creative content.

Recent Developments at the U.S. Copyright Office

Through every major invention, from the printing press to the camera to streaming services, the U.S. Copyright Office (USCO) has continued to redefine what copyright means. AI is just the latest technology to come before the agency, prompting fresh debates and policy considerations. The lawsuits now before the courts are testing whether current copyright laws are sufficient in addressing the nuances of this technology. Meanwhile, the USCO has been actively seeking public input on how copyright law should adapt to the technical capabilities of AI.

In July 2024, they released their first report, Part 1: Digital Replicas, which addresses five key areas:?

Licensing and Permissions for AI Training

The USCO proposal recommends that AI developers obtain explicit licenses to use copyrighted materials in their training datasets. This requirement aims to ensure creators are compensated when their works are utilized to train AI models.?

Transparency in AI Training

The proposal emphasizes the importance of transparency in AI training by requiring developers to disclose the sources of their training data. This measure is intended to promote accountability and compliance with copyright laws, helping to prevent infringement and build trust among creators, developers, and the public.?

Criteria for Copyright Protection of AI-Generated Content

The USCO proposal introduces guidelines for determining when AI-generated content qualifies for copyright protection, focusing on originality and the degree of creative transformation. These criteria are designed to balance the protection of creators' rights with the encouragement of innovation in AI-generated works.?

Clarification of Fair Use in the Context of AI

The proposal suggests revisiting the fair use doctrine to clarify its application in the context of AI training. This revision aims to provide a balanced approach that protects creators' rights while allowing for innovation in AI development.?

Expanding Copyright Law’s Reach into AI Development Process

The proposal aims to expand copyright law to cover not only AI-generated content but also the processes involved in AI development, such as data training and algorithm design. This comprehensive approach addresses the unique challenges posed by AI technology, ensuring that copyright protections extend throughout the entire AI development lifecycle.?

These proposals suggest that the USCO recognizes current laws may be insufficient for addressing the complexities introduced by AI. The measures include mandates for licensing agreements to prevent unauthorized use of copyrighted content, promoting an ethical and open AI development environment, and extending copyright protection to modern technological processes.

From Adversaries to Bedfellows

In a fascinating turn of events, despite the lack of clear legislation around copyright for AI training, major deals are emerging between Generative AI companies and media conglomerates. While debates over fair use continue in courtrooms, companies like OpenAI are forging partnerships that align more closely with the principles of licensing and compensation. These deals suggest a shift in strategy, as both AI firms and media companies recognize the benefits of clear, mutually beneficial agreements over contentious legal battles.

One of the most notable partnerships is between OpenAI and Condé Nast, announced in August 2024. This deal currently allows OpenAI to use content from Condé Nast’s prestigious brands, such as Vogue and The New Yorker, in its SearchGPT product. This integration ensures proper attribution and compensation by providing direct links to news stories, enabling users to explore content directly from the source. OpenAI plans to extend these features to ChatGPT in the future, reflecting a cautious approach due to the challenges of maintaining accurate attribution in large language models.

Similarly, The Atlantic has entered into an agreement with ProRata.ai, a generative AI startup, also announced in August 2024. This partnership allows ProRata.ai to license The Atlantic’s content for AI training, with a clear focus on fair compensation and ethical practices. By moving away from reliance on fair use defenses, The Atlantic and ProRata.ai are setting a new standard for how copyrighted material can be used in the AI age. These agreements highlight a growing trend in the industry toward collaborative frameworks that protect intellectual property while fostering innovation, aligning closely with the spirit of the USCO's proposals.

Who’s Watching Out for John Churchman?

As the U.S. Copyright Office (USCO) proposes new guidelines and companies like OpenAI forge licensing agreements with major media entities, the AI industry is shifting from exploiting readily available copyrighted internet content to strategically forming alliances with established, data-rich media companies. This shift reflects a growing recognition of the value of content and the importance of fair compensation, but it raises critical questions about who really benefits in this evolving landscape.

While large media conglomerates, with their vast archives of high-quality content, are well-positioned to negotiate profitable deals, individual creators often find themselves sidelined. Independent authors, photographers, and artists—particularly those who self-publish or share their work on platforms like Amazon, Instagram, and YouTube—may not have the same leverage to demand compensation for their contributions to AI training. This imbalance echoes historical patterns where the power dynamics favored those who controlled distribution, as seen with John Churchman and Harper & Brothers. Today, similar dynamics play out, with companies like Meta using publicly shared social media content to train AI models, often without direct compensation to the original creators.

This trend suggests that in the AI era, profits will largely accrue to those who control substantial volumes of valuable data, much like how early publishing favored those with access to print and distribution networks. Companies such as Getty Images are developing and selling their own models, while Condé Nast and The Atlantic monetize their data through strategic sales and partnerships. Meanwhile, individual creators, whose works are vital for AI training but less protected by traditional contracts, risk being left behind.

Ultimately, the issue isn’t AI itself but the longstanding relationship between creators and the platforms that monetize their work. As AI technologies continue to advance, there is an urgent need to rethink how content is valued and how creators are compensated. The focus should not just be on whether AI will profit from copyrighted data, but on ensuring that all creators—whether they are large media entities or individuals publishing on social media—have stronger rights and better protections. Without this shift, the narrative remains unchanged: those who control the channels of distribution continue to reap the greatest rewards, while individual creators struggle to find their place in a rapidly changing digital landscape.

I'm Lori Mazor. I teach AI with a Human Touch.? I'm reinventing how we educate, strategize, and build the future one article at a time. If you enjoy this newsletter.

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