The US Copyright Office’s new report on AI is great for creators, AI tool developers . . . and lawyers
After a year of study and more than 10,000 comments, the US Copyright Office issued its second report on AI and copyright. This report attempts to address the question of when works created with AI tools can be copyrighted. (A third report, to be released later, will address the contentious issue of the legality of training AI tools on copyrighted material.)
Here are the report’s main conclusions:
- Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
- The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
- Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
- Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
- The case has not been made for additional copyright or sui generis protection for AI-generated content.
What this means
The key question on the minds of all creators of content is, “If I use AI in my work, can I still copyright it?”
I liked Cornell Law professor James Grimmelmann’s summary, published in the Washington Post: “If you make art with the help of AI, it’s copyrightable. If you ask AI to make art for you, it’s not.”
As the report describes, creators who use AI as a tool in the process of their creative work can copyright the results, provided they have some some creative input. And creators who create work with AI and then modify it can claim copyright on the modifications they make.
But what you can’t do is simply prompt AI to create something and then claim copyright on the result — no matter how elaborate and detailed the prompt is.
Why this will become the full-employment-for-copyright lawyers report
What the report fails to address is that AI will be present in everything, in ways that go far beyond simple prompting.
Any future creator of content — a game designer, computer coder, writer, artist, photographer, filmmaker, audio producer, musician, or what have you — is likely going to be using AI in everything they do. If you use a computer to help create content now as nearly all of us do, that computer is going to include AI elements.
Right now your computer helps you do things like choose fonts, debug code, arrange photographic elements, and compose video elements. Nobody thinks that the existence of those features makes the results uncopyrightable. The computer is just making things easier.
Every feature of what we do in the future will be backed up by AI. As the race to add AI features goes on, it’s already inserting itself into every tool we use.
This means every piece of content generated in the future will be a collaboration between human and machine, in a way that makes it very difficult to tease apart which who is responsible for the creativity.
The Copyright Office is now on the record confirming that if you prompt an AI system to create art, you can’t copyright the result. But that leaves a big murky question about all the other ways that AI will help create art in the future, ways that I’m sure we can’t yet imagine. The future of such methods will go far beyond prompting.
Result: there will be thousands of cases that, as the Copyright Office suggests, must be decided “on a case-by-case basis.”
If you’re a creator, keep creating. And if you’re a copyright lawyer, now’s a good time to start planning that home remodel or starting your kids’ college funds, because you’re about to have a steady stream of clients for the foreseeable future.
Reverend Martin Sherlock wrote in 1781 about a book of letters by Lord Chesterfield: “In general, throughout the work, what is new is not good; and what is good is not new.”
No matter how accurate generative AI becomes, it will always be predicated on the idea that what others have written before is what I want to write now. No. The mean of a million hacks will never be good enough.