Artist Rights Institute Joins with Digital Creators Coalition on Special 301 Submission to US Trade Representative

We were pleased to join in with the Digital Creators Coalition on a public submission to the US Trade Representative’s Special 301 Report for 2025. The USTR Special 301 Report is an annual review by the United States Trade Representative assessing global intellectual property rights protection and enforcement. It identifies countries with inadequate IP laws, highlights issues like copyright piracy and trade secret theft, and aims to improve IP environments for U.S. rights holders. The report also highlights concerns about the protection of AI-related intellectual property and the enforcement of IP rights on AI platforms.

Crucially, the DCC submission addresses problematic “TDM exceptions” and the harms to creators they cause:

TDM Exceptions Threaten Creators’ Contributions to US National Economic Security 

The United States must continue this trajectory of promoting respect for copyright and protection the US creative sector. We strongly oppose broad copyright exceptions for AI, including with respect to TDM, and reaffirm our position that its proponents have failed to demonstrate the need for such an exception. However, some countries are actively considering, or have already adopted, TDM exceptions that fundamentally weaken copyright protection in favor of promoting AI at the expense of the American creative sector. 

These negative impacts of TDM exceptions would result from the use of creative content without authorization and without compensation, which are core components of copyright protection, and essential for further creation and dissemination of creative works. Moreover, where AI developers fail to maintain adequate records and provide recordkeeping and transparency regarding what content they use to train their AI models, rightsholders face enormous hurdles in enforcing their property rights, including in court. Left unchecked, these and other related harms threaten the sustainability and competitiveness of America’s creative sector and its ability to contribute to US economic growth and job creation. 

Unfortunately, countries such as Japan and Singapore have already implemented broad TDM exceptions that weaken copyright protections in favor of allowing companies to train their AI models on copyrighted material without a license. China as well as other markets such as Brazil, Chile, Colombia, Hong Kong, Indonesia and the United Kingdom are all considering proposed copyright exceptions for TDM. Such measures often also lack recordkeeping and transparency obligations on AI developers regarding the creative content used in AI model training. These exceptions will undermine US property rights and cause irreparable harm to the creative sector by undermining the ability of US creators to create and disseminate new works, thereby impeding the creative sector’s significant and sustained contributions to US national economic security. Such measures also facilitate the offshoring of the US AI sector and expose vast amounts of data to foreign control. 

The borderless nature of digital exploitation means that negative impacts of one nation’s TDM exception would be global as AI models trained in one country on creative content without consent from, or compensation to, rights holders would be exploited around the world. Such global copyright arbitrage would deny the creative community the opportunity to license their content for training and would contravene international copyright treaties, including the three-step test contained in the Berne Convention, TRIPS Agreement, WIPO Internet Treaties, and other international agreements. 

In this context, we stress that so called “opt-out” provisions for rightsholders to reserve their rights are wholly inadequate to remedy the critical flaws inherent in TDM exceptions for a variety of practical reasons.9 Such schemes would create a fundamentally asymmetrical obligation, imposing the onus entirely on copyright holders and forcing them to rely on unproven means and nonexistent jurisprudence that will create legal uncertainty, chill licensing negotiations, and make enforcement highly challenging.

The submission goes on to make recommendations on how to address TDM and opt out on a country-by-country basis.

You may read the whole submission here.