COPYRIGHT AND ARTIFICIAL INTELLIGENCE

INTRODUCTION

The United States Copyright Office on the 27th of January released the “Report on Copyrightability,” this seeks to offer direction on the use of Artificial Intelligence and the claim of ownership authorship on outputs from AI prompt, addressing both legal and policy issues related to AI and Copyright as outlined Office’s August 2023 Notice of Inquiry (“NOI”). Here is the summary below.

AUTHORSHIP AND ARTIFICIAL INTELLIGENCE

The Office considered the divergent opinions and comments on whether AI-generated works should qualify for registration. The Office adopts the description of generative AI as a “Blackbox” explaining that the input prompt doesn’t necessarily determine the output, thereby eliminating the need for substantial human contribution that qualifies as an innovation process. The report stressed the need to maintain “Human Authorship” in Copyright because the originality criteria for Copyright is lost in “prompt engineering.”

?The Image above was used to simulate the input prompt and the output typically generated through Generative AI. While some commenters argued that the sweat and labor of the “author” should be rewarded, the Office clarified that Copyright is not necessarily a reward for “hard work.” Since human contribution is limitless or almost non-existent, authorship cannot be granted.

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As seen in the Image above, the first Image itself would be copyrighted as that is the original work copyrightable and authored by the Copyright holder. The position of the Office on this is that “they will be the author of at least that portion of the output.” That is, on a case-by-case basis, the Office would determine the portion of output that is original to the author in registration.

INTERNATIONAL APPROACHES

The Office considers how Copyright offices in the international Scene have addressed the issue of the registrability of AI-generated content. These Includes Korea, where “only a natural person can become an author”. Japan, where parameters such as (1) the amount and content of the instructions and input prompts by the AI user, (2) the number of generation attempts, (3) the selection by the AI user from multiple output materials, and (4) any subsequent human additions and corrections to the AI-generated work are considered.

China has started to grant registrability on AI-generated content as the Internet Court in 2023 decided that the use of over 150 prompts, including subsequent modification, will qualify as an “intellectual achievement” as a personalized expression. In the EU, the qualification for Copyright protection is “only if the human input in [the] creative process was significant.” The UK was reported to have a pre-existing statute predating the development of generative AI technologies that protect works “generated by computer in circumstances such that there is no human author of the work.” Where such a person is designated as a “person by whom the arrangements necessary for the creation of the work are undertaken.”

THE ARGUMENTS FOR LEGAL CHANGE

There was a consensus on the need to have significant contributions by humans to qualify a work for Copyright. However, there are some instances where the Office has evaluated each case to grant Copyright for works with huge Artificial Intelligence impact. There were arguments about creatives living with disabilities and how registering their works could facilitate inclusion despite the use of AI. The Office responded that:

“For example, the Office recently considered an application to register a sound recording by GRAMMY-winning country artist Randy Travis, who has limited speech function following a stroke.196 The track was created based on the recording of a human voice, using “[a] special-purpose AI vocal model . . . as a tool . . . to help realize the sounds that Mr. Travis and the other members of the human creative team desired.”197 The result, which would have been infeasible without this technology, was a new track appearing to be sung in Travis’s legendary voice. Because the sound recording used AI as a tool, not to generate expression, the Office registered the work.”

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