As we have written here on this blog, artificial intelligence (“AI”) programs and modules are causing turmoil in the area of copyright law. In general, three areas are concerning to copyright holders:
- What copyrighted inputs are being used by AI programs (for training purposes, for example)?
- What copyrighted content is being permanently held by AI programs as necessary to their functioning?
- What is copyrightable about AI generative output?
The vast amount of pending AI/copyright litigation is focusing on the first two questions and the litigation is now going global. For example, in November 2024, a large Indian news agency, ANI, filed a copyright infringement lawsuit against OpenAI in the Delhi High Court. Recently, legal opinions have been issued stating that the High Court has jurisdiction to hear the case. ANI’s claims are similar to those raised by other news and media organizations: OpenAI is using copyrighted materials without permission or payment to train its AI programs. See here for the media report.
In the meantime, the U.S. Copyright Office has issued a recent report and opinion on the third question — the copyrightability of AI output. The report can be seen here. The report clarifies and reiterates the Copyright Office’s stance on various points related to the copyrightability of AI-generated output. For example, the report reiterates the Office’s rejection of any attempt to make AI-generated output copyrightable. The report states: “Copyright does not extend to purely AI-generated material or material where there is insufficient human control over the expressive elements.” The Copyright Office has said this over and over again. Further, the report also reiterates that human artistic expression is copyrightable even if the work also includes AI-generated material. Essentially, the human authorship is copyrightable, while the separable AI-generated output is not. Again, this position has been often repeated by the Copyright Office. The report also reiterates that copyright decisions involving combined human and AI-generated output are to be made on a case-by-case basis.
Unfortunately, the report also included statements that raise concerns about clarity and about how much time will be spent by the Copyright Office in trying to define and explain a new standard. The central statement in question is this: “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.” (emphasis added). The use of the word “perceptible” is obviously worrisome since it is predictable that many people can and will disagree about whether human authorship is “perceptible.”
The report’s other bullet-pointed summary items include the following.
- Questions of copyrightability and AI can be resolved pursuant to existing law without the need for legislative change
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- The case has not been made for additional copyright or sui generis protection for AI-generated content
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