Is OpenAI Fair To Demand Copyrighted Data?

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Last week, AI giant OpenAI urged the United States government to make it easier to use copyrighted material to train AI, and warned that not doing so will cost the US the AI race (against China).

OpenAI has been hit with multiple lawsuits, from media outlets to writers to visual artists, alleging that the company had unfairly used their work to train their models without authorisation. These cases would likely set the course for what the standard practices would be for training AI models.

Last month, in one of the landmark cases filed by Thomson Reuters against AI startup Ross Intelligence, a judge ruled in favour of the plaintiff, finding the use of copyrighted material by Ross Intelligence a clear infringement.

To seek recourse over its own cases, OpenAI has written to US President Donald Trump, insisting on including the fair use of copyrighted material in Trump’s AI Action Plan, hoping that would settle its lawsuits.

Let’s dive into this “fair use” discussion a little.

Fair Use, Or Not?

What is fair use: Chapter 107 of the Copyrights Act in the US provides certain freedom over the use of copyrighted material, for the purpose of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

Read: Copyright law of the United States, Chapter 107

It also provides the following factors to be considered, to determine whether such use of copyrighted material is “fair” or not:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

2.  the nature of the copyrighted work

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. the effect of the use upon the potential market for or value of the copyrighted work

Arguments against fair use for AI training: Plaintiffs in the copyright lawsuits have primarily invoked point 1 and 4 of the factors presented in Chapter 107 of the Copyrights Act, to argue that OpenAI is making commercial use of the copyrighted material, while directly competing against them.

The arguments for fair use: OpenAI argues that it requires fair use of such copyrighted material to keep their AI models ahead of the others, while specifically mentioning US’ biggest competitor China, where it claims “developers have unfettered access to data.” It further argues that failing to do so will result in America’s loss, and the loss of democratic AI.

Spot The Irony

So OpenAI wants unfettered access to people’s copyrighted material to create products that bring it revenue, but is not willing to share how it uses such data. Compare that with China’s top AI model DeepSeek-R1 - which is open-sourced under MIT License—allowing the complete freedom to use, modify, and redistribute the model for any purpose, with minimal restrictions. Which one is the democratic AI here, I wonder.

Given how unpredictable the Trump administration has been, it is really hard to tell whether OpenAI will be granted the “fair use” pass. But it is likely to have a tremendous impact on the creative industry.

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