After months of highly-publicized striking, the Writer's Guild of America ("WGA") recently ended its labour stoppage after reaching a tentative agreement with the Alliance of Motion Picture and Television Producers ("AMPTP") on September 24 (the "Agreement"). A few weeks later in the middle of October, 99% of WGA members voted to ratify the Agreement. The reason that WGA members voted overwhelmingly in favour of the Agreement was that it put many contentious issues to rest, with WGA securing: a larger share of residuals resulting from foreign streaming, increased compensation for screenwriters, and minimum standards for how many writers must be employed on greenlit TV shows. Perhaps most significantly, in the midst of the negotiations came a potential watershed moment with respect to the role Artificial Intelligence ("AI") will play in the media and entertainment industries for the years to come. Equally timely, the use of AI scans of actors' likenesses, and the compensation actors will receive for use of those scans, remained an apparent final sticking point in the negotiations between the AMPTP and the Screen Actors Guild ("SAG") until a tentative deal was reached in early November.
What's so Scary About AI Entering the Writer's Rooms?
At the heart of the writers' concerns is apprehension surrounding Generative AI. Generative AI is a type of artificial intelligence that generates new content such as images, text, music, or videos based on data that it receives. Traditional AI systems can only make predictions based on patterns in existing data and are unable to produce new information or content, but Generative AI is able to take vast amounts of data to essentially self-train its systems to create new content based on what it has learned from working with previous sets of different data.
Writers have been concerned about such technologies being used to write new material or rewrite human writers' materials and in the process diminish human writers' credit and residuals. During the negotiation process, the WGA took the position that AI-produced materials should not be considered "source material" or "literary material," since they could cause AI to be considered actual "writers" on scripts or diminish the credit that human writers get on certain projects. There is also apprehension about previously-created works being used to train Generative AI systems.
How the Agreement Treats Generative AI
The Agreement establishes the following rules for the use of AI in projects it covers:
- AI cannot write or rewrite literary material, and AI-generated material will not be considered source material under the Agreement, meaning that AI-generated material cannot be used to undermine a writer's credit or separated rights;
- A writer can choose to use AI when performing writing services, if the company consents and provided that the writer follows applicable company policies, but the company cannot require the writer to use AI software (e.g., ChatGPT) when performing writing services;
- The company must disclose to the writer if any materials given to the writer have been generated by AI or incorporate AI-generated material; and
- The WGA reserves the right to assert that exploitation of writers' material to train AI is prohibited by the Agreement or other law.
These rules will allow writers and producers to make use of AI if they so choose, insofar as this use does not (1) reduce or eliminate the actual use of writers or (2) reduce or eliminate writers' pay. The Agreement also provides WGA with the ability to challenge the use of writers' works to train AI systems in the future.
Going forward – Is the Productivity-Boosting Power of AI Truly a Danger to Writers?
It is hard to predict how pervasive AI may be in only a couple years' time. The Agreement acknowledges this, stating that "[t]he parties acknowledge that the legal landscape around the use of [Generative AI] is uncertain and rapidly developing." The terms of the Agreement will not last forever; the Agreement continues until May 1, 2026 and upon expiry, AI rules will undoubtedly be negotiated anew.
Some concerns that were not even addressed in the Agreement could become issues well before 2026. For example, writers that create works under employment agreements—and therefore retain no copyright—may still find their words being used to train AI systems. This also means that AI systems may still have considerable databases to draw from if studios begin to see the training of AI as a productive use of their scripts.
What the WGA-AMPTP (and SAG-AMPTP) negotiations lay bear is that all stakeholders will have to find some degree of comfort in a delicate balance of AI usage leading to productivity and efficiency gains, while also providing writers and authors with appropriate rights and control over their works. With the help of AI on the backend and a balanced approach, writers may end up being free to do more of what they love and focus on expanding their ideas and creativity.
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