Brazil’s statement at WIPO CDIP 33 emphasized AI’s transformative potential in IP while highlighting challenges like copyright violations and the need for fair remuneration. Advocating for global governance and legislative reforms, Brazil called on WIPO to ensure transparency, equity, and inclusive policies that protect creators’ rights and provide equitable access to AI benefits.
Brazil CDIP 33rd Statements
BRAZIL: Thank you, Madam Chair. We thank WIPO for the opportunity to discuss AI in the context of development. We note the many number of WIPO representatives at the podium now including ADG Natsumi which we thank very much for a time showing that this is a cross organizational aspect and expresses the correctness of treating this topic at the CDIP without prejudice to the specific technical committees of WIPO.
Now, Madam Chair, the rapid pace of development of AI technology has put it under the spot. In 2022, sorry, we were all stunned by the launch of generative AI systems which we all assumed were years away and now we as countries and we as international organizations are analyzing its implications, potential uses and the necessity of regulating it. AI, of course, can be of significant assistance to IP offices in the process of registration and management of industrial property rights such as patents, trademarks, industrial designs. The translation of technical documents is another area where AI can be widely applied with the assistance of WIPO. Some such uses were explored recently in the last session of the SCP and application of AI in PCT activities are also being discussed at the PCT Working Group.
But another area of analysis is the constitution and exercise of Intellectual Property Rights. So on the patent side, the use of AI systems can have an impact on new discoveries, increasing innovation. It also raises questions about patentability and ownership of the innovation resulting from such systems. This was explored previously by the Secretariat. So AI can assist research with the potential to result in a large number of patent applications. Additionally, it may be used to boost anti-competitive strategies adopted by specific industries to file patents for incremental modifications aiming to block competitors’ R&D, so-called patent tickets. So in this context, legislative changes in the patent legislation may be necessary to encompass and address such challenges and opportunities. But the speed with which this technology develops is, of course, a challenge for us as regulators. Now, I would like to address specific copyright-related issues on AI.
As we all know, AI systems, especially generative AI, demand vast amounts of data, the most valuable of which is copyright protected. Copyrighted works such as music, books and movies contain organized expression of ideas which are vital for AI systems to develop their capacities to, so to speak, mimic human behavior. Of course, generative AI can be a tool for creation and like any new tool, it has benefits and risks. It raises a series of ethical, aesthetic, technical and legal questions that we have the responsibility of examining. Now, in many countries, including Brazil, the United States and others, the protection of an author’s right is a constitutional clause. Article 27 of the Universal Declaration of Human Rights protects the moral and material interests resulting from any scientific, literary or artistic production of which the person is the author. So we see a strong basis for discussing the protection of author’s rights in AI systems. There’s a trend towards the reduction of the value of creative works, the so-called commoditization of creative works, which affect the enjoyment and exercise of the copyright protection to authors, artists and creators.
A study by CISAC published just last week shows that copyright right holders will lose 22 billion euros until 2020 in the music and audiovisual sectors alone. This figure does not include losses to writers, photographers, interpreters or producers of phonograms. Another study by German and French collective management organizations estimated that music authors will lose 27% of the royalties due to generative AI by 2028, four years away. Similar negative effects have been estimated in Australia and New Zealand.
Now, what are the causes of such losses? They will be due to the substitution of human labor for AI, the competition of AI produced content with copyrighted works and the lack of payment for the use of protected works in the training of AI systems. This raises a particularly important question relating to the long-term production of works. AI systems demand a diversity of cultural production, but how could we generate it without authors, performers, creators and humans? How can we continue to have the production of works if we don’t have the necessary economic incentives for human authors in the copyright system? Further, how do we differentiate authentic human work from AI-generated works? Considering this scenario, it is without a surprise that authors demand a fair remuneration for the use of the works. Many letters, public manifestations have proliferated with thousands and thousands of artists, performers and their associations signing. At the same time, tech companies argue this would stem innovation, but the individual market value of a leading AI company can reach 250 billion U.S. dollars.
Reports in the media also indicate that companies such as Google and Microsoft spend every few months 10 billion U.S. dollars on data centers and AI infrastructure. Further, as I had mentioned, copyrighted works are one of the most important, if not the most important input for generative AI systems. It would be not only illegal but absurd if AI companies did not pay for other basic inputs such as energy, data centers, or software. Why would this be the case with copyrighted works? And according to reports by authors, artists and even representatives from AI companies in the media, use of protected works is happening without authorization from rights holders.
As a consequence of this, companies developing AI systems may have violated in each work used at least five rights granted to authors by copyright legislation. The first is reproduction rights when a work is stored in a system’s database. The second is the transformative use or a derivative use of a work in the output of a generative AI system. The third is the author’s moral rights, that is, the author’s right to ensure the integrity of his or her work. We also have a violation of technological protection measures to enable the reproduction of the work in the AI system’s database. And finally, the violation of digital rights management to enable the standardization of the information contained in the work.
Now, all those rights I mentioned are available in WIPO’s copyright and related rights treaties such as the Berne Convention, Rome Convention, WCT, WPPT and so on. Madam Chair, we note the growing international consensus on the need of adequate addressing issues involving copyright and artificial intelligence. Under the Brazilian presidency of the G20 this year, the Minister of Culture adopted a declaration in November which for the first time highlighted the importance of payments to copyright holders in the digital environment and transparency on the inputs and outputs of AI models. The declaration also demands an effective engagement at WIPO for discussions on copyright and AI. Likewise, the G7 declaration of the Minister of Culture issued in September referred to the necessity of organizations developing advanced AI systems to respect Intellectual Property rights, particularly copyright and to take measures to ensure data quality including transparency.
At the UN level, we have adopted earlier this year a landmark text on AI which is Resolution A/78/L.49. This resolution encourages the implementation of appropriate safeguards to respect IP rights, including copyright. In the last General Assembly of the United Nations, President Lula from Brazil presented our national view on AI. He stressed the opportunities that AI presents, but he also highlighted that AI may be used for the consolidation of asymmetries that lead to a true oligopoly of knowledge with an unprecedented concentration in the hands of a small number of people and companies based in an even smaller number of countries. We are interested in emancipatory artificial intelligence which assists the development of countries and strengthens cultural diversity.
President Lula has stressed the necessity of an intergovernmental governance of artificial intelligence in which all states have a seat. This was ratified by this year’s G20 leader’s declaration adopted two weeks ago which, and I quote, “call for strengthening and effective global engagement on the discussion of copyright and related rights in the digital environment and impacts of AI on copyright rights holders.” This underlines the high level agreement on the topic by the 20 largest economies of the world. So we understand that there is a clear demand by countries and a clear mandate in some countries to discuss a common global framework for AI in WIPO.
Now, coming to the Development Agenda and AI topic which is the topic of the CDIP, of course, we must highlight the role of the WIPO Development Agenda in this discussion. Many recommendations are applicable. Considering the cross organizational spirit of the Development Agenda, it constitutes a basic framework for eliminating the impact of AI technology in its Member States and considering further action in WIPO. Questions on the topic abound. How can WIPO support its Member States for the implementation of AI systems that address their socioeconomic demands? How can we ensure that the benefits of AI are equitably accessible worldwide instead of being concentrated in a few countries? And how can the digital divide between countries that already is a characteristic of advanced technologies be reduced with the assistance of WIPO?
WIPO has the duty of assisting Member States to harness and enjoy the benefits of AI technology, taking advantage of the range of technical information available here at this organization. It should also coordinate responses with other organizations according to Member States’ demand as well as to ensure consistency of its activities with United Nations activities, particularly the Sustainable Development Goals and the Global Digital Compact. Any debate regarding AI in WIPO must be open, transparent and taking into account different levels of development. Participation of governments is indeed a basic requirement. This is a member driven organization, especially when we discuss the desirability and necessity of normative work. Brazil is ready and looks forward to continuing engagement in such discussion at the SCCR, the CDIP, the SP and the General Assembly.
Now, to conclude, Madam Chair, I would just like to present recent developments in Brazil.
We have been intensively discussing the regulation of artificial intelligence for the last two years. On Tuesday, two days ago, the Brazilian Senate approved Bill 23/38 regarding artificial intelligence. This bill regulates something that cannot be reversed. We recognize that we need to bring reality into legality. The basic principles of the bill regarding copyright are, one, transparency in the use of content for training AI systems; two, remuneration to authors and other copyright holders for the use of works in AI systems, both on the input and output side; and third, the attribution of authors for the exercise of moral rights. The bill also includes a limitation for research organizations, museums, public archives for noncommercial text and data mining. In this way, we guarantee the lawful use of works. But why did Brazil do this? We see that the alternative to regulation is to have expensive and time-consuming legal disputes that will affect the dynamics of both AI systems and the copyright system with unpredictable decisions and outcomes. This results in lower investments by AI companies and reduced royalties payments to all authors and copyright rights holders. More than 35 cases are ongoing in the U.S. We also see disputes in the U.K., Canada, Denmark, and Germany. Madam Chair, we urge countries to engage in this fundamental discussion for Intellectual Property. Countries from every level of development should closely examine the topic. We expect WIPO to continue addressing it in its committees, particularly the CDIP, the SCCR, and SCP. Thank you and my apologies for the long statement.
