Could an AI Copyright Opt-Out Breach Australia's Constitution? The 'Just Terms' Debate
Photo: CQF-avocat / Pixabay
Australia's debate on AI and copyright has gained a constitutional dimension. As reported by Guardian Australia, Coalition senators and the recording industry have warned that changing copyright law so AI companies can train on music, books and journalism without a licence could breach the Constitution, and expose the Commonwealth to compensation claims.
The background
The federal government has ruled out a broad text and data mining exception for AI training. Some AI developers have instead suggested an opt-out model, where content could be used for training unless the rights holder signals an objection, for example through technical protections. Anthropic has argued for such a model in submissions to a parliamentary inquiry, Guardian Australia reported earlier in October.
The constitutional argument
Section 51(xxxi) of the Australian Constitution lets the Commonwealth make laws for the acquisition of property "on just terms". The concern raised by critics is that a law which takes away part of what copyright owners can control, and hands that use to AI companies, might count as an acquisition of property. If it did, the owners would be entitled to just terms, in practice compensation.
Nationals senator Ross Cadell, a member of the parliamentary committee on AI, said an opt-out model "does raise a real question of whether the government is acquiring the intellectual property rights of others." The recording industry raised similar concerns.
What the expert said
Professor Anne Twomey, a constitutional law expert at the University of Sydney, told Guardian Australia that there was "potentially" a concern, depending on how any legislation is drafted. She stressed that the question is complex and that no legislative proposal has been released.
She noted that the High Court has considered copyright and the acquisition of property in several earlier cases, including disputes about video games, tobacco plain packaging and blank cassette tapes, with varying outcomes, and that the court recognises a number of exceptions to section 51(xxxi). In her words, "one would want to be quite confident before enacting the legislation about whether or not section 51 would apply."
According to the report, the Attorney-General's Department said it was "extremely alive" to the issue.
Why it matters
There is no bill yet, so this is a risk being flagged early rather than a legal finding. But it shows that the design of an AI copyright rule is not only a policy choice. In countries with constitutional property protection, how an exception or opt-out is written can decide whether it survives a court challenge, and who might have to pay if it does not.
Sources
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