澳洲擬議 AI 版權改革遭警告或涉違憲及巨額賠償

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.

“We could be liable for ‘just terms’ compensation for acquiring that property for every rights holder on Earth,” Ross Cadell, a Nationals senator, told Guardian Australia.

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”.

“If they go ahead with an opt-out model, it does raise a real question of whether the government is acquiring the intellectual property rights of others,” said Cadell, a member of the federal parliamentary committee on AI.

“How we support property rights is core to this.”

A spokesperson for the attorney general, Michelle Rowland, said the government was “committed to supporting” creatives and pledged that “any future copyright changes deliver meaningful control and fair compensation”.

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.

“The high court has recognised a number of exceptions to section 51 … One would want to be quite confident before enacting the legislation about whether or not section 51 would apply,” Twomey told Guardian Australia.

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”.

“It’s hard to imagine what kind of compensation would make up for the fact that they’re basically taking our right … and trading it away to the AI companies to then monetise themselves, and that appears to be a clear path to a constitutional challenge.”

Chris Maund, CEO of Mushroom Records, said current copyright law was working and that AI companies should use existing licensing arrangements, noting companies such as Spotify were already making AI-related deals.

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.

“The AI company could do their training here in Australia and circumvent the copyright laws that apply outside of Australia, and that’s why the international creative industries are watching this very closely,” he said.

Maund said international rights holder groups had been urging Labor not to weaken copyright law. Guardian Australia has provided submissions to the Joint Select Committee as a member of Australia’s wider rights holder community.

“The Australian government has been really great to the music industry, particularly Prime Minister Albanese and Tony Burke. They’ve set up Creative Music Australia, which companies like us and our artists have done very well out of, but it feels like they’re out of step with artists and copyright owners on this point,” he said.

Cash said the Coalition welcomed the benefits of AI and wanted investment, but also raised the constitutional concern.

“That is the prime minister’s own test, and the government should be held to it,” she said of compensation to rights holders.

“The constitutional question of property rights and their acquisition on just terms is also a live issue we will be examining depending on what the government puts forward.”

Cadell said while AI had benefits, he worried about its risks.

“There’s lots of talk about what the benefits may be and what may happen. But if we take these rights away, we know what will happen,” Cadell said.

“I don’t want to hurt people for a ‘may’.”