Talk III: How Fair is “Fair Use” in the AI Age?



  • Available Until 5/28/2025
  • Class Time 1:00 PM PT
  • Duration 90 min.
  • Format On-Demand
  • Program Code BCLT0012
  • CA General CLE Credits: 1.50 hr(s)

Enroll Free for CLE


Program occured on April 30, 2024

Event Information | Agenda | Resources

Presented by Asia IP & Competition Law Center

Conventionally, the fair use doctrine has been serving as a safety valve in balancing the copyright protection of expressive creativity and necessary access for cumulative creativity. Despite the modern US Copyright Act’s legislative intent of having broad exclusive rights and narrow limitations however, for some reasons in past decades the supposedly limited fair use doctrine has turned essentially into a  broad transformativeness test, i.e. the secondary work is transformative as a matter of law “[i]f looking at the works side-by-side, the secondary work has a different character, a new expression, and employs new aesthetics with [distinct] creative and communicative results.” This simplistic inquiry has arguably caused, among other confusions, a serious collision between authors’ right to derivative works and the transformative-use dominated fair use defense. This collision is likely to be further exacerbated with the rapid deployment of generative AI tools in the creative industry, where consumption of large amount of copyrighted works (as “raw materials”) in the training process has been forcefully argued by some as fair use, due to the “transformativeness” of the AI outputs. But is this “fair use” indeed fair, particularly in light of the fact that many such AI outputs constitute competitive commodities with the original copyrighted works created by human artists?  On a deeper level, is such a broad fair use doctrine consistent with the principles of the IP system that has been running for centuries to incentivize and honor human creativity? In the wake of Warhol v. Goldsmith, a landmark case in which the US Supreme Court took great pains to clarify the decade-long confusion prevalent in the interplay of fair use and author’s right to derivative works, please join me in an in-depth discussion with my esteemed Berkeley colleagues Prof. Peter Menell, Prof. Robert Merges: how fair is “fair use” in the AI age?



Dr. Yuan Hao, BCLT

Prof. Peter Menell, BCLT

Prof. Robert Merges, BCLT