The world is embracing a new frontier with recent developments in machine learning, deep learning, and artificial intelligence. Although AI research has a rich history, it wasn’t until 2018 that we were introduced to the transformative breakthrough that was the generative pre-trained transformer (GPT) by OpenAI. This snowballed innovation, which increased at an exponential rate, leading to ChatGPT, DALL-E, Midjourney, and Stable Diffusion among a plethora of other technologies and solutions.
As these AI technologies evolved and became more and more sophisticated and trained on larger quantities of data, including preexisting human-authored works that are copyrightable, the algorithms and models unlocked the capability to produce expressive material. For example, these AI models may operate in response to a user’s prompt to create an output that may be textual, visual, or audio in what has been dubbed “generative AI” that raises important questions about copyright law and its application in this new landscape.
Copyright Office statement on material generated by AI
In response to this phenomena, on March 16, 2023, the United States Copyright Office released a statement of policy clarifying its practices for examining and registering works that contain material generated by AI. The United States Copyright Office is no stranger to dealing with the authorship requirement in connection with technology. In the past, it has denied applications for works described as “autonomously created by a computer algorithm running on a machine,” because these works contained no human authorship. In other instances, works combining human-authored elements and AI-generated images have been recognized as copyrightable, but only for the human-authored components. This policy underscores that copyright law, as it currently stands, can only protect material that is the product of human creativity. The term “author,” used in both the U.S. Constitution and the U.S. Copyright Act, excludes non-humans, making AI-generated content, just like photographs taken by a monkey, ineligible for copyright protection.
The bottom line is this: the copyrightability of generative AI is necessarily a fact specific and case by case determination based on the context and information provided by the applicant. The United States Copyright Office will ask whether the applicant’s “work” is basically one of human authorship, with the AI technology merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed by technology and not a human.
Example of how copyright does and doesn’t apply to AI-generated material
To illustrate, if a user instructs a text-generating AI system to “write a poem about copyright law in the style of William Shakespeare,” the AI technology might decide the rhyming pattern, the words in each line, and the structure of the text. However, the generated material, while potentially complex and innovative, is not a product of human authorship and is therefore not protected by copyright. On the other hand, a human may modify, select or arrange AI-generated material in a sufficiently “authored” or creative manner where the human-authored aspects of the resulting product may be eligible for copyright protection. The United States Copyright Office will need all the relevant information about an applicant’s “work” in order to make the distinction between the former and latter.
As such, applicants who wish to copyright works containing AI-generated content must disclose this information in their application and provide a brief explanation of the human author’s contributions to the work. This applies even if the AI-generated content is more than de minimis.
A new legal frontier for copyright and AI
While the United States Copyright Office has been clear on human authorship when it comes to generative AI, it is also invested in the future of AI and copyright. After the release of its policy statement, the United States Copyright Office on August 30, 2023 then issued a notice of inquiry on copyright and AI to undertake a study of the copyright law and policy issues raised by generative AI and to assess whether legislative or regulatory steps are needed. These issues include:
1. The use of copyrighted works in training AI models: There’s a debate over whether using copyrighted works to develop AI training datasets is infringing. The United States Copyright Office is seeking public input on the collection and curation of these datasets, as well as the need for permission or compensation for copyright owners when their works are used, including the type of remuneration and retention of records in connection with underlying training materials.
2. The copyrightability of AI-generated material: While U.S. law stipulates that copyright protection is limited to works of human authorship, there are questions about the distinction between human creation and AI-generated content and about where and how to draw the line. The United States Copyright Office is working on updating its registration guidance on AI-generated material and is seeking public comment on this issue.
3. Potential liability for infringing works generated by AI systems: The United States Copyright Office is interested in how copyright liability principles apply to content created by AI. For instance, if an AI-generated output is found to be substantially similar to a copyrighted work used in the training dataset, it wants to explore how liability should be apportioned between the user who prompted the output and the developers of the system and dataset.
4. The treatment of generative AI outputs that imitate the identity or style of human artists: While these personal attributes are not generally protected by copyright law, their copying by AI systems could implicate varying state rights of publicity and unfair competition law. The United States Copyright Office is seeking input on this issue as well.
Complex landscape for AI and copyright law
These inquiries are a testament that the intersection of AI and copyright law presents a complex and rapidly evolving landscape. As AI continues to revolutionize various aspects of our lives, it is essential to understand and adapt with the evolution of copyright law. The United States Copyright Office’s initiatives to release guidance and to study technological impact represent a significant step towards understanding and navigating this complexity.
O&A is here to help you navigate the future of generative AI and copyright
O&A, P.C., can help answer any questions you may have about using generative AI, whether you’re simply using it as a tool in your business or if you’re launching a startup centered on innovating with artificial intelligence.
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