Facilitative fair use

Recent generative artificial intelligence (AI) copyright lawsuits have ignited a crucial debate about the future of intellectual property. The technology involved is complex, but the essential conflict is simple: creators are trying to stop machines that are capable of imitating them from doing just that. These are familiar battle lines. From the loom to the first camera, inventions have long triggered anxieties about technology’s potential to displace artistry.

Much of the commentary today focuses on AI’s potential to mimic creators, echoing these earlier concerns. However, this framing misses a key insight: AI is a powerful tool for widely facilitating the production and dissemination of human creativity and artistry—two important goals of copyright law. Original case studies presented in this Article explore how AI is helping authors, book publishers, libraries, movie producers, and game developers fulfill these goals. To balance the benefits of AI-assisted production and dissemination with creators’ rights, this Article introduces the concept of “Facilitative Fair Use.” This framework is both timely and urgent; without it, AI training will be limited to licensed works, potentially perpetuating bias in the copyright ecosystem and limiting the diversity of creative expression.

Ultimately, this exploration reveals the debate’s true stakes: the kind of cultural landscape we want to foster.