ABSTRACT
In this article I consider whether a generative AI (‘GenAI’) model could be an infringing imported article under the secondary infringement provisions of the Australian Copyright Act 1968 (Cth) (‘Copyright Act’). Australian copyright owners have joined the global challenge to the widespread scraping of copyright works in the development and training of GenAI models. The problem they face is that, unless reproductions or other infringing acts take place in Australian territory, those primary acts of infringement fall outside the jurisdictional limits of the Copyright Act and taking action as foreign plaintiffs in the locus of infringement is problematic. I consider whether a sufficient nexus might exist through the ‘importation’ of AI models into Australia and commercial dealings with them, engaging the Act’s secondary infringement provisions. Liability for importation imposes a hypothetical infringement test that would likely be satisfied for AI models. However, statutory language crafted in a pre-internet age, and the tendency for AI models to exist in offshore internet cloud portals complicate the ability to make successful claims. Therefore, in this article I advocate statutory amendments to accommodate the reality of trade in digital products and recommend further research interrogating the potential for bespoke statutory reform to empower Australian rights holders to regulate the engagement from Australia with foreign-hosted AI models.
McCutcheon, Jani, Are AI Models Infringing Imported ‘Articles’ Under Copyright Law? (2026) 48 Sydney Law Review 20847.
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