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OpenAI now tries to hide that ChatGPT was trained on copyrighted books, including J.K. Rowling's Harry Potter series
(www.businessinsider.com)
this post was submitted on 22 Aug 2023
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It is not a derivative it is transformative work. Just like human artists "synthesise" art they see around them and make new art, so do LLMs.
Transformative works are not a thing.
If you copy the copyrightable elements of another work, you have created a derivative work. That work needs to be transformative in order to be eligible for its own copyright, but being transformative alone is not enough to make it non-infringing.
There are four fair use factors. Transformativeness is only considered by one of them. That is not enough to make a fair use.
LLMs don’t create anything new. They have limited access to what they can be based on, and all assumptions made by it are based on that data. They do not learn new things or present new ideas. Only ideas that have been already done and are present in their training.