From safe harbours to AI harbours: reimagining DMCA immunity for the generative AI era

Abstract Generative artificial intelligence (AI) overturns the passive-intermediary assumptions that underlie the US Digital Millennium Copyright Act (DMCA) safe harbour. Modern systems ingest vast, often unlicensed datasets and emit on-the-fly outputs through a supply chain that spans data suppliers, model developers and deployers—raising parallel concerns in the EU, UK, Hong Kong and other jurisdictions. Building on DMCA section 512, this article sketches an ‘AI harbour’ that ties immunity to role-specific duties: provenance disclosure and transparency for data suppliers; dataset curation, memorization-mitigation and watermarking for developers and dynamic filtering, complaint handling and repeat-infringer policies for deployers. A new statutory section—administered by an ‘AI Division’ within the Copyright Office—would certify actors, audit compliance and endorse technical standards developed through industry co-regulation. The proposal preserves the DMCA’s cooperative bargain while supplying clear, technologically realistic compliance pathways. Because its tiered obligations, administrative oversight and adaptive self-regulation can be grafted onto existing regimes, the model travels well: the EU could integrate comparable safeguards alongside the Digital Services Act and AI Act; the UK’s post-Brexit reforms and Hong Kong’s technology-neutral Copyright Ordinance could embed similar structures. In this way, the AI harbour could offer a scalable blueprint for protecting creators without chilling innovation in the generative era.