80 In May 2025, the U.S. Copyright Office released a groundbreaking - albeit non-binding and pre-publication version - report examining whether the use of copyrighted works to train generative artificial intelligence (AI) models may qualify as “fair use” under U.S. law. Similarly, in December 2022, the Israeli Ministry of Justice issued a non-binding legal opinion titled “Uses of Copyrighted Content for Machine Learning,” which explored the permissibility of such practices under Israeli copyright law. These reports address a critical and foundational issue for AI developers, copyright holders, and policymakers alike: whether, and under what conditions, the use of protected works for ML constitute lawful use. Together, the U.S. and Israeli opinions exemplify two distinct legal and policy approaches to the use of copyrighted content in the training of AI systems, highlighting the global divergence in regulatory outlooks on this emerging issue. The recent U.S. Copyright Office report and the Israeli Ministry of Justice opinion represents a significant step toward establishing a regulatory framework to address this issue, representing the first substantive governmental effort in the United States and Israel to grapple with the legal implications of using copyrighted works in AI training. What Is the “Fair Use” Exception? In general, the fair use doctrine seeks to balance copyright protection with freedom of expression, innovation, and research. It allows certain uses of protected works without the rights holder’s permission. Fair use typically covers purposes such as self-education, research, criticism, commentary, and journalism. Courts evaluate several factors to determine whether a use is fair, including: • The purpose and character of the use; • The nature of the original work; • The amount and substantiality of the portion used in relation to the work as a whole; • The effect of the use on the market value of the original work. As part of that analysis, courts may also consider whether the use is “transformative” that is, whether it adds new meaning, context, or purpose to the original work (e.g., parody, academic analysis, or critical commentary). If the new work serves a different function than the original, it may qualify as fair use.
RkJQdWJsaXNoZXIy MjgzNzA=