Copyright in the Era of Generative AI

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Generative artificial intelligence (AI) is a rapidly evolving technology. Its increasing use and popularity spawn new copyright questions and concerns regarding the works these tools produce and the materials used for their training. The usage of current innovations such as ChatGPT and Midjourney has encouraged new engagement in the creative community. Now, anyone can use generative AI to produce creative works, such as literary, artistic, or musical. Existing artists are also using AI to amplify their creative abilities. An example is the MoMA’s collection created by the artist Refik Anadol who used AI to interpret and transform the museum’s data set to create new art forms, resulting in a high-resolution dream of a modern art collection. Thus, generative AI has unlocked new possibilities for innovation.

However, like any emerging technology, generative AI also raises challenges requiring consideration from policymakers. For instance, the recent Screen Actors Guild – American Federation of Television and Radio Artists union strike highlights the concern many have about the potential of AI to write screenplays and create characters without any human involvement resulting in significant job displacement. Their concern extends to copyright protection, as ChatGPT and Midjourney scripts could incorporate elements from existing filmmakers’ works, leading to copyright issues. Addressing the various policy challenges with copyright policy and law is crucial to encourage innovation and foster creativity in the United States.

Overview of Generative AI Technologies and Copyright Protection

Generative AI is a recent advanced iteration of AI technology. It takes a user’s instructions, or “input”, and creates new text, visual or audio materials, or “outputs”, by drawing from preexisting works used for their training. The concerns around generative AI and copyright protection revolve mainly around determining authorship in AI-generated works, the level of human involvement required for copyright protection, and the potential infringement of copyrights by AI outputs. These questions address the areas of authorship, fair use, and infringement in the evolving field of generative AI content, requiring careful evaluation within copyright law and policy.

The Human Authorship Requirement

The U.S. Copyright Office (the “Office”), a federal agency tasked with administering the copyright registration system and advising Congress on copyright and related matters, issued a policy statement with guidelines for evaluating and registering works that incorporate content generated using artificial intelligence technology.

Human authorship is a crucial principle that guides the evaluation of AI-generated content under copyright protection. Determining whether AI outputs can be eligible for copyright protection depends on the notion of “authorship.” The Office established that copyright exclusively protects content that originates from human creativity. “Copyright law is limited to the original intellectual conceptions of the author, and the Office will reject registration claims if it determines a person did not create the work.”

However, generative AI outputs have made the Office evaluate the authorship requirement combined with material generated “by or with the assistance of technology.” When conducting this evaluation, the Office looks to whether the work primarily stems from human authorship, where the computer or other device serves as a tool, or whether the essential elements of authorship were conceived and executed by a machine rather than a person. The Office’s policy statement provides specific elements they utilize to assess if works meet the requirements for copyright protection; these are provided below: