WIPOD – Arbitration and Mediation Matters: Transcript of Episode 14

AI, Intellectual Property, and Alternative Dispute Resolution: Finding Creative Solutions

Oscar Suárez

Welcome to another episode of the WIPO Arbitration and Mediation Matters podcast. Today we're looking at three areas that are increasingly connected: artificial intelligence, intellectual property, and alternative dispute resolution. Our guest is Andrés Izquierdo, who works at the intersection of law, technology, and innovation. Andres advises governments, international organizations, and tech companies on the legal frameworks around AI, creativity, and digital platforms.

He founded his own specialized firm and served as counsel to the Program on Information Justice and Intellectual Property at American University and the Geneva Graduate Institute. His work includes participating in WIPO treaty negotiations, advising on national copyright reforms, and developing international AI policies with a particular focus on Latin America, Europe, and the United States. He's published work with Oxford Law and Wolters Kluwer and has been recognized by Best Lawyers and Chambers and Partners for his intellectual property practice.

Today, we'll discuss how alternative dispute resolution can help solve those disputes that are related to AI and intellectual property, and what that means for creators, innovators, and the broader legal landscape.

I'm Oscar Suárez, and you can contact us at arbiter.mail@wipo.int. Welcome.

Oscar Suárez

Andres, welcome to the show. It is always a pleasure to talk to you. For starters, why don't you tell us what drove you to become an IP practitioner?

Andrés Izquierdo

Thank you, Oscar.

My journey with IP started because of my deep appreciation about art and all the creative process and also how these matched the legal structures to sustain IP. So, IP for me has been always about protecting innovation and rewarding creators, creating a space for users to use the works.

My first job was working with the music industry in Colombia and specifically with the music sector. After that, I went over and jumped into Sony Music, and I was the legal director for Sony Music. And that gave me even more first-hand exposure on how copyright functions in practice.

Later in time, I started my law firm practice and then I also engaged even more in IP policymaking with American University and the Geneva Center of Knowledge. And one of the first things I did was reviewing the copyright chapter of the free trade agreement between the US and Colombia. And it was very interesting because it was all the DMCA, the Digital Millennium Copyright Act and the copyright laws of the US—how they were going to be implemented in the Colombian legislation.

But I've been always very, very interested in how emerging technologies, especially artificial intelligence, interact with these traditional doctrines, these traditional laws that have been created, like for example, the Berne Convention that is more than a hundred years old agreement. And that intersection is where—how law can adapt in a thoughtful way so it can allow the creation, innovation, and all the field of IP to continue to exist while also the technology advances.

Oscar Suárez

I would have a follow-up question to that: at what point did you realize that the technology was going to reshape the creative industries the way that it's doing it right now?

Andrés Izquierdo

Wow, yes. I mean, you know, it's such an interesting question because for a long time, a very, very long time, artificial intelligence was just like something of outer space. There had been a lot of experiments and really there was this article that I wrote some years ago about the history of AI and how it began to work and then what it led to in copyright. And it really started in the 1950s—AI—but all these years from the 1950s up to 2020, it was just many, too many, a lot of promises of moving forward, a lot of promises and a lot of failed attempts.

Then it began slowly to unfold. And then in 2022, with all these takes on data mining, things that were happening, and then in 2023, when ChatGPT started, it was like, okay, this is now here and it's now changing the world.

Oscar Suárez

What would you say are the main disputes that are happening in the context of AI and IP?

Andrés Izquierdo

So, there's basically four core issues that you find in these disputes between AI and IP. One of them, and we're focusing mainly right now on copyright, is the use of copyright works for training. So this is super, super important because when you see the cases, the main cases—for example, industries, copyright holders against different AI platforms like OpenAI or Anthropic—most of the claims are related to the right holders challenging the assumption that technology companies can freely ingest copyright content to train generative AI systems without authorization or compensation.

Most of the cases in the US and also in Europe and Canada—I mean, also Brazil, there's another one—they're mainly based on this part. Like, why are you using all my content without paying me compensation for using my content? So, it's a claim that is all around.

The second one is related and it's very, very interesting because when these companies, when these right holders are suing, the main argument that the AI platforms are using as a defense is there is fair use and exceptions, right? Exceptions and limitations to the copyright law, which has been — which is one of the parts — because the copyright system is built in a way that there's rights for the right holders and there's also exceptions or limitations so people can use this content without paying.

So there has been a lot of discussion about this and there's a couple of cases that happened five years ago in the US where fair use was the main tool of defense and actually it gave the way to Google in one of those cases to use many of the books to be able to create the platform that you see when you search books in Google – you find that platform to use it.

So, it's very important at this moment to make a difference between the inputs and the outputs because the input is the information that you use that is sometimes copyright protected and that's the litigation. But there's also the other side, which is what comes out of that training. What is the result of that? And those are the outputs. So that is when the derivative works and all these claims about "you are using my content to compete in my market and you're taking clients away from me." And that's one—for example, one of the main arguments of the case of New York Times against Microsoft and OpenAI—that is saying you are using my content and then you are using it to produce something that is very similar to what the New York Times produces.

A fourth point that is very important about the main disputes that we are seeing is the different deals that are being made, the different licensing and compensation models that are being found. So many disputes — I mean, not saying that it's a huge amount, but a very important, a significant number of disputes have moved from litigation into negotiation. And that is very important because this is when mediation comes along and helps. Even if the lawyers decide to sit down and just talk and try to solve the problem before it gets to a court or even if it's in court they can bring the case out of court as it happened with Anthropic.

This is something that is creating new licensing frameworks and is creating new types of legal contracts. And there's this recent case—and we can discuss this a little bit more in detail—between Disney and OpenAI. It's a high-profile example of this trend of contracts, of negotiation that is happening out of court that is being solved with new creative ways.

Oscar Suárez

You rightly point out that maybe this is not the most common way of solving these disputes and maybe that's not the biggest amount of disputes that we're seeing, but it is true that the amounts that are in dispute are quite substantial and quite important in general for what will be a result afterwards if we're thinking about the authors, creators, interpreters, producers, etc.

In the end what we're seeing here is the possibility, which mediation for example brings— and alternative dispute resolution—of having creative solutions that are going to help unlock in a faster way, in a more flexible way, in a more business-oriented way, these disputes. Let's thread into that. We can look a little bit closer to this case of Disney and OpenAI to see how this can help unlock the value that is trapped when parties are facing this type of conflict and they're facing this potential litigation.

Andrés Izquierdo

Yes, absolutely, Oscar. I mean, this deal is very recent. The deal between Disney and OpenAI was made public in December of last year. I'm sure it took them a long time to be able to get to this final point of settlement where they made this very significant deal, because I mean, if you see there's at least 70 lawsuits worldwide right now between copyright holders against AI.

So, this recent deal between Disney and OpenAI could signal a turning point on this litigation. Because rather than fighting in courts, Disney decided to license over 200 of its most valuable characters to OpenAI's Sora platform in exchange for equity—that is I mean, in exchange for shares in the company, in OpenAI—transforming this possible litigation into a possible strategic alliance. So, it was very interesting because instead of going to courts and fighting each other, Disney and OpenAI said, hey, let's be kind of partners. And if you grow, I grow.

At the core of the agreement, there's like four very important points. There's a three-year licensing agreement allowing Sora, OpenAI's app, to include more than 200 characters from Disney, Pixar, Marvel, and Star Wars in user-generated videos and images.

The big second topic is like an integration of selected fan-generated AI content into Disney+, making a rare crossover from AI-created works into a mainstream entertainment platform.

The other part that is super significant is a billion-equity investment, plus stock warrants allowing Disney to increase its stake if OpenAI valuation grows, signaling a financial agreement between creative IP holders and AI platforms.

And the last one is an internal development of OpenAI tools across Disney operations, expanding content workflows and product development and audience engagement initiatives. So, this means that also Disney is going to use OpenAI to create more of their works.

So, you see the deal. In the deal, they said, okay, I'll give you all this money in shares. I will use your tool – Disney says – to create new characters and you, OpenAI, can also use my characters to develop more content with your tool.

Oscar Suárez

That is a solution that rarely could have come from, let's say, court litigation.

Andrés Izquierdo

I think that was a very creative solution from both parties to try to sit down and try to create a new possible model.

I’m not saying this is the main—this is going to be the main trend, because this is a unique—so far, it's a unique deal. And the other deals that are being normally done are licenses, right? So, the normal thing that is happening right now is for example, Getty Images tells an AI platform, I'm going to let you use my images, but you have to pay me a license or royalties for the use of every photograph.

And that's what is happening right now, the traditional model of licensing. That's what is happening more. But this one was a different one. It was like, yeah, I want a piece of the cake. I want a piece of that that is growing.

Oscar Suárez

For sure. When we talk about ADR, especially, let's say, mediation in this case, we always highlight that IP benefits a lot from the fact that it tends to be confidential. Of course, in this case, we don't have confidentiality because of other reasons, the strategy behind it, the relevance of the transaction. But there are many other setups where confidentiality is a very important benefit of using ADR. Do you think this is true in the AI industry? What is your view on this or is it just a feeling that I have?

Andrés Izquierdo

No, absolutely, Oscar. I mean, this is a really good question because you're going to be a little bit surprised by what I'm going to tell you: The first time I learned about this deal between Disney and OpenAI was on the Bloomberg Finance platform, Bloomberg Radio, where they talk about stocks and they talk about the markets and the moves and what's happening with the S&P 500 and what's happening with oil, with gold.

But not all companies are on the stock market, and not all companies have this big, huge importance or relevance in the stock market. And in this case, of course, I mean, a deal between AI and copyright immediately raises the shares and that's what it did — immediately raised the value of the shares.

But normally what will happen is that these deals are not that public, as you said. This was something that was in the moment and it was part of a strategy, I'm sure, to be able to make it public. But normally what mediation offers is—it's one of the things it offers—the confidentiality between the parties, right? That they agree and that at the end of the deal, they will basically have a non-disclosure agreement not to talk about what the deal was and how it was made.

But it's true what you're saying. Normally it would be more like a private matter that would not be released to the public unless both parties want to release it to the public, as it happened in this [case]. I'm sure that's what happened.

But also, the other thing that is super important about these alternative dispute resolution methods, of mediation, is expertise and speed. Because I mean, the speed that you can make a deal like this would be a lot faster than litigation because a litigation right now—for example, the litigation of New York Times against Microsoft was filed two years ago and they're still being discussed and there's no—and the other cases, many of the other cases came in 2025. They're still in court and maybe it's going to take one, two years maybe to be solved, maybe a little bit longer, compared to deals that are being struck on the side between the right holders and AI companies where they are like, hey, let's sit down and make it.

So, this is something very important because the speed of mediation and the expertise—because there's lawyers involved that know about the topic and they will all be all — I mean, they're all experts in the topic because the lawyers of OpenAI or the lawyers of Disney, of course, they are experts on this topic making a deal.

So that's also the other thing. The other thing is that the solutions—and it's super important—because the solutions are tailored. When I say tailored, I say you can make the solution however you want it and however both parties feel comfortable. Right. And that's so you don't have to wait for the judgment of a judge, right, to tell you how you have to comply with your rights and how much you have to pay. But in this case, you can sit down and say, hey, let's make a deal and let's make any deal that is going to work for us.

Like we saw in Disney-OpenAI, that was a very creative one and different from the other ones that have been done. And also, the other thing is that mediation creates these collaborative frameworks where there's this cooperative problem-solving way of working. So, this is a way of engaging parties in a way that is going to be to collaborate to help each other to find a solution. So those are things which also don’t happen directly with litigation because litigation is one against the other and let's see who is right.

Oscar Suárez

Andres, thank you for that and thank you for your time today. It's been absolutely interesting to listen to your perspective on what's happening and how to use ADR to solve these kinds of disputes. Before we end, we'd like to give some advice to new or aspiring practitioners. What would you say to them? And let's put it in the realm of AI if you want.

Andrés Izquierdo

Yeah, absolutely. Of course, definitely. Yeah, it's true. When I went to law school, we barely had computers.

Oscar Suárez

Yeah, that was some time ago.

Andrés Izquierdo

We had one computer that we had to take turns to be able to use it. So yes, it's been—so we had to study the laws from the—have a very strong foundation on the laws.

And that's one thing that I would definitely recommend to young practitioners is to build a strong foundation in the laws that exist already. Master the core copyright principles because they still remain a bedrock of the copyright system. And as it happened with the treaties in 1995, the internet copyright treaties—at that time, those treaties were trying to solve a problem, the internet, when internet was coming and when internet arrived and there was all this illegal downloading. The principles remained. And right now, we're having all this AI, but still the principles are still there. I mean, the copyright principles. So, I would recommend first of all to understand very well the IP law and the copyright law principles that build the whole system.

The other thing that you need to do is to understand tech. I mean, I cannot have—I've engaged sometimes with lawyers that have told me that they don't even know what ChatGPT is. And really, I mean, that is a little bit hard to understand because this technology is everywhere and you need to understand it and you need to find a way to use it for the benefit of your work, of your practice. And of course, in a way that is going to be respective—in the case of practitioners of law—in a way that respects the privacy of the clients, but also in a way that engages the work of the clients to improve it and to make it better. So definitely understand tech. You don't have to be a developer, but you definitely have to understand how these technical things work.

The other thing is to engage globally because, contrary to what I was raised in—in a culture where IP was only local at that time in the early 2000s where IP we just needed to know about the Colombian IP because I started my practice in Colombia and then I went into the US but we only needed to know about locally—but now it's a global, it's a cross-border situation.

When we talk about mediation, mediation is surely going to happen. There are too many cases that are cross-border issues, you know, between a person that used the content in Finland and the creator was in Argentina or a person that created the tech in California and the right holder is in Spain or it's in Cambodia. I mean, it's all over the world. And AI is breaking all the borders and it's now—and there's too many international dialogues happening. For example, all the forums that WIPO creates, that WIPO brings over and all these multilateral institutions are working on this. That definitely makes you much more of a richer, or a more prepared practitioner to work across jurisdictions.

The other thing that you definitely need to do is develop negotiation skills. That is super important because that comes all the mediation that we were speaking about. And also in court, even if you file a lawsuit in court, there's going to be a point where the judge is going to ask you to try to reach an agreement, right? Try to make a deal. Try to make a deal. For example, in the case of Anthropic in the US, they made a deal. And for example, in Colombia, they request you to have mediation before filing the lawsuit, right? And some countries do the same way, do the same. So definitely negotiation skills like creative contracting or licensing, even though you need to be prepared for litigation. And those are definitely like main things.

But I think the most important one is that you like what you're doing and that you have—you find that connection with the work that you do. If you love art, if you love fashion, you love technology, you love science, IP is a great way of definitely having a practice, a legal practice.

Oscar Suárez

Andres, thank you so much for your time. It's been a pleasure to have you with us.

Andrés Izquierdo

No, thank you very much, Oscar, for the invitation and congratulations on the fact of the great work that you do with the mediation and arbitration center. I've seen you've been doing many more things worldwide and definitely it has continued growing. It's a great work.