The United States Copyright Office (USCO) recently released a report titled "Copyright and Artificial Intelligence Part 2: Copyrightability" 1 (the Report). The Report provides guidance on the copyrightability of works created using generative AI and summarizes the conclusions and recommendations made by USCO as follows:
- 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.2
Notably, AI systems take one or more inputs, in the form of prompts such as text, images, audio, video or a combination of mediums and use these inputs to generate an output. For example, a human author may create an original illustration, input that illustration into an AI system and instruct the AI system to modify the colour of the work or to layer portions of the existing image.3 This input would be considered an "expressive input". 4 The Report recognizes that some AI systems allow expressive inputs to be substantially retained as part of the output.5 In these circumstances, since the human-authored input is reflected in the AI-generated output, the human author may have a greater claim to authorship because "there is a limited range of specific expressive output" as a result of their contribution.6 However, the Report specifically notes that, "in many circumstances [AI-generated outputs] will be copyrightable in whole or in part – where AI is used as a tool, and where a human has been able to determine the expressive elements they contain," but at this stage, prompts alone "are unlikely to satisfy these requirements".7 USCO will continue to monitor developments in this regard, to evaluate the need for a different approach.8
The copyrightability of works generated using generative AI is currently also a hot topic in Canada. For example, in December 2021, the Canadian Intellectual Property Office (CIPO) granted a copyright for a "Starry Night-inspired" painting titled "Suryast." The copyright was granted through CIPO's automated copyright registration process. The human creator of the painting, Ankit Sahni (Sahni), created "Suryast" by prompting a GenAI painting tool called RAGHAV Artificial Intelligence Painting App (RAGHAV) to combine Vincent Van Gogh's painting, "The Starry Night", with a photograph that Sahni had taken of a sunset. Sahni and RAGHAV are currently listed as co-authors of the work. In July 2024, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPC) submitted a notice of application in Canada's Federal Court under section 57(4) of Canada's Copyright Act9seeking an order that "Suryast" be struck from Canada's copyright registry because there is no copyright in the image or alternatively, to amend the registration so Sahni is the sole owner.10
Notably, in December 2023, the Copyright Review Board (the Board) of USCO affirmed USCO's refusal to register "Suryast" in the US.11 The Board found the work was not the product of human authorship, since the expressive elements of pictorial authorship were not provided by Sahni. 12 The Board found that RAGHAV was responsible for the presence and arrangement of particular elements and colours in the artwork. Sahni's contribution in providing the base image (his photograph), the style image ("The Starry Night" painting) and a numerical value for the strength of the style transfer, constituted the unprotectable idea behind the work, namely an altered version of Sahni's photograph in the style of "The Starry Night" painting.13 The Board noted that Sahni could apply to register his photograph at USCO, assuming it meets all statutory requirements, but he cannot register "Suryast" (the AI-modified version of his photograph) at USCO. The Report aligns with the Board's decision regarding the copyrightability of "Suryast", i.e. that copyright does not extend to purely AI-generated material or material where there is insufficient human control over the expressive elements.
If Canada aligns with the US, then we can expect that CIPPC will be successful in Federal Court and that "Suryast" will be struck from CIPO's copyright registry in its entirety. However, if Canada ultimately decides that copyright protection can extend to purely AI-generated work or to material where there isn't substantial human control over expressive elements, then other intellectual property-related issues will need to be considered, including ownership, licensing and assignment of an AI-generated work, and whether an AI system can waive its moral rights to the copyrighted work.
Footnotes
1 Copyright and Artificial Intelligence, Part 2 Copyrightability Report, United States Trademarks Office (January 2025) at iii.
2 Ibid at iii.
3 Layers are used in digital image editing to separate different elements of an image.
4 Supra note 1 at 22.
5 Ibid.
6 Ibid.
7 Ibid at 41.
8 Ibid.
9 RSC 1985, c C-42.
10 Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic v Ankit Sahni, (8 July 2024), Ottawa, FCC T-1717-24 (notice of application).
11Second Request for Reconsideration for Refusal to Register SURYAST, (11 December, 2023), Boston, Copyright Review Board, SR # 1-11016599571; Correspondence ID: 1-5PR2XKJ.
12 Ibid at 7.
13 Ibid at 8.
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