ARTICLE
23 March 2023

BREAKING NEWS: AI-Assisted Works Can Be Protected By Copyright

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Contrary to certain perceived notions that all AI-generated works were not copyrightable, the U.S. Copyright Office has issued a policy statement clarifying its practices for examining and registering works that "contain material generated by the use of artificial intelligence technology."
United States Technology
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Contrary to certain perceived notions that all AI-generated works were not copyrightable, the U.S. Copyright Office has issued a policy statement clarifying its practices for examining and registering works that "contain material generated by the use of artificial intelligence technology." The statement, which is expected to be published in the Federal Register tomorrow, maintains the Office's long-standing position that "copyright can protect only material that is the product of human creativity." That policy, however, "does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship." Such historical tools, for example, include Adobe Photoshop for image editing and guitar pedals for sound recording. According to the Office, "In each case, what matters is the extent to which the human had creative control over the work's expression and 'actually formed' the traditional elements of authorship."

With respect to AI, namely generative AI, a work will not be entitled to a U.S. copyright registration if it lacks human authorship. For instance, "when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the 'traditional elements of authorship' are determined and executed by the technology-not the human user." The Office based this conclusion on its understanding of generative AI technologies currently available, in which "users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist-they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output."

In contrast, where a human selects or arranges AI-generated material "in a sufficiently creative way" that "the resulting work as a whole constitutes an original work of authorship," or modifies material originally generated by AI technology "to such a degree that the modifications meet the standard for copyright protection," those works may be registered. The Office nevertheless clarified that, even in those cases, "copyright will only protect the human-authored aspects of the work, which are 'independent of' and do 'not affect' the copyright status of the AI-generated material itself."

Ultimately, "applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author's contributions to the work." The Office's new policy provides additional detail on how to submit applications for works containing AI-generated material and how to correct a previously submitted or pending application.

While not a significant policy change (if at all), this is perhaps just the first step in the evolution of copyright law with respect to AI. "The Office continues to monitor new factual and legal developments involving AI and copyright and may issue additional guidance in the future related to registration or the other copyright issues implicated by this technology."

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