[pbhjpbhj]

Actually, copyright generally is infringed when a copy is made; hence the name.

That's why, say, 17 USC 106 lists reproduction as the first exclusive right of a copyright holder. And why Berne Article 9 [^1] is about restricting right of reproduction to the author.

Damages are often, in different jurisdictions, related to actual harm. So, distribution is the focus of lawsuits because actual harm in the making of a copy is usually negligible. Few people are suing to stop copying, they're suing to be recompensed for the [potential] commercial benefit derived from the copying.

In as far as you need to make a copy to use it to process and adjust the weights of an ML model, then yes this activity is an infringement to the right to control reproduction.

One of the measures for transformative use is whether the production of the copy commercially harms the original creator/author. I can't see how you can argue that ML models don't do that. Besides which we don't have an equivalent precedent to 'transformative use' in UK so where our courts can go with all this is not clear.

https://www.wipo.int/wipolex/en/text/283698

[p_l]

There is however the aspect of how much a work is derivative of another work, and that's where the ultimate mixing aspect of AI models shines - as it was documented that removing or adding a specific work in some cases impacted around ~1bit - or less than the random number generator used in some of the processes.

This is also why the output of AI model can infringe - because while having copyrighted work in training set does not result in model being considered derivative, it can produce a work that is obviously a derivative - and as such can be claimed to be a derivative that harms original creator.

Just the fact that the model in general might impact some very vague notions of commercial income is not enough, it must do so through a derivative, and thus infringing, copy