Coalition senators and the recording industry say allowing AI companies to train on creative works under copyright changes could breach the constitution, raising fears of massive compensation claims from rights holders worldwide.
Nationals senator Ross Cadell said he worried the federal government could face liability for "the biggest compensation rights case in history". Cadell raised his concerns in a parliamentary committee hearing, where officials said they were conscious of those issues.
The debate centres on section 51 of the constitution, which allows the commonwealth to make laws about the acquisition of property on "just terms". Anne Twomey, a constitutional expert, said granting AI companies new rights to use copyrighted material while diminishing the rights of holders could "potentially" trigger constitutional issues, depending on how any legislation is drafted. She noted the high court had recognised exceptions, and that no legislative proposal had yet been aired.
Prime Minister Anthony Albanese has previously called non-payment for creative work "theft" and promised "the strongest possible protection" for creators. But creative industries remain alarmed, with some AI firms opposing existing licensing agreements and requesting an opt-out model. Anthropic has suggested such a system, where content could be scraped unless rights holders specifically object.
Annabelle Herd, CEO of the Australian Recording Industry Association, said 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," she said. Chris Maund of Mushroom Records raised concern that a change could let an AI company train in Australia to circumvent copyright laws outside Australia, adding that international creative industries were "watching this very closely".
Shadow attorney general Michaelia Cash said the constitutional question was a "live issue" and that the government should not "sell out Australian creators and rights holders in the rush to entice AI investment". A spokesperson for Attorney General Michelle Rowland pledged that any future changes would "deliver meaningful control and fair compensation".
Analysis
Why This Matters
- The outcome could set a major global precedent for how copyright law intersects with AI training.
- A constitutional breach could expose the Australian government to enormous international compensation liability.
- The decision directly affects the livelihoods of Australian musicians, authors, and journalists.
Background
The federal Labor government is developing a comprehensive regulatory package on artificial intelligence, covering data centres, safety, workforce, energy and copyright. AI companies have sought easier access to copyrighted material for training, proposing opt-out models instead of licensing agreements. PM Anthony Albanese has previously stated that using creative work without payment is "theft".
Key Perspectives
Ross Cadell (Nationals senator): Warns an opt-out model could be a constitutional breach and lead to the "biggest compensation rights case in history".
Annabelle Herd (CEO, ARIA): Calls any scraping proposal a "clear path to a constitutional challenge".
Anne Twomey (Constitutional expert, University of Sydney): Notes the issue is "exceedingly complex" and a "potential" concern but depends on the legislation's final form.
Chris Maund (CEO, Mushroom Records): Argues current licensing works and warns of international copyright circumvention risks.
What to Watch
- The content of the government's upcoming AI copyright reform announcement.
- Potential engagement from international rights holders in a legal challenge.
- Positions taken by major AI companies in the ongoing parliamentary inquiry.
Checked
12 claims in this story checked against 1 source: 12 supported.
Show each claim
- SupportedCopyright changes could breach the constitution, a senator says.World news | The Guardian: “Coalition senators and the recording industry have warned ... it could trigger a constitutional breach”
- SupportedPossible changes letting AI train on copyrighted material raise “just terms” property concerns.World news | The Guardian: “any weakening of copyright to benefit AI could represent a breach of section 51 of the constitution”
- SupportedCoalition senators and the recording industry warn that copyright changes could lead to massive legal action and compensation claims from rights holders worldwide.World news | The Guardian: “Coalition senators and the recording industry have warned ... it could open Australia to massive legal action and compensation claims from rights holders worldwide.”
- SupportedCadell worried the federal government could face liability for “the biggest compensation rights case in history”.World news | The Guardian: “Cadell told Guardian Australia he worried about such a development opening the federal government to liability for “the biggest compensation rights case in history”.”
- SupportedCadell raised his concerns at a parliamentary committee hearing, where officials said they were conscious of the issues.World news | The Guardian: “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.”
- SupportedTwomey said granting AI companies rights to use copyrighted material while diminishing copyright holders’ rights could potentially raise constitutional issues, depending on how legislation was drafted.World news | The Guardian: “granting a new right to AI companies to use copyrighted material and diminishing the rights of copyright holders could “potentially” trigger constitutional issues.”
- SupportedTwomey noted that the High Court had recognised exceptions and that no legislative proposal had been aired.World news | The Guardian: “She said numerous cases had come before the high court relating to copyright and acquisition of property ... Twomey ... noted no legislative proposal had been aired.”
- SupportedAlbanese called non-payment for creative work “theft” and promised “the strongest possible protection”.World news | The Guardian: “the prime minister, Anthony Albanese, has promised “the strongest possible protection”, warning it would be “theft” if creatives weren’t paid for their work”
- SupportedSome AI companies rejected licensing agreements under existing copyright law, saying they were too difficult.World news | The Guardian: “Some AI companies have rejected making licensing agreements under existing copyright law, saying it was too difficult.”
- SupportedAnthropic suggested an opt-out model under which content could be scraped unless rights holders signalled an objection.World news | The Guardian: “Anthropic suggested an “opt-out” model which would allow it to scrape content unless a rightholder deployed digital protections signaling an objection.”
- SupportedHerd said a proposal allowing AI companies to scrape data was “clearly an acquisition of property”.World news | The Guardian: “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”.”
- SupportedMaund said an AI company could train in Australia to circumvent copyright laws applying outside Australia, and that international creative industries were watching closely.World news | The Guardian: ““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.”