Just as the U.S. Patent Office has declined to consider patent applications naming an artificial intelligence as an inventor, the U.S. Copyright Office has declared that works authored by artificial intelligent artists or authors are ineligible for copyright protection. In a new notice published in the Federal Register, "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence," 88 FR 16190 (March 16, 2023), the Copyright Office reiterated that "copyright can protect only material that is the product of human creativity." Id. at 16191.
In the Notice, the Copyright Office states that works submitted for registration will be reviewed, on a case-by-case basis, to determine:
whether the 'work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine. Id. at 16192 (internal citation omitted)
The Notice states that "[i]f a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it." Id.
For example, the Copyright Office notes that most AI systems allow user prompts, such as "write a poem about copyright law in the style of William Shakespeare," and that the system will generate one (or more) poems that resemble that style and reference copyright, but "the technology will decide the rhyming pattern, the words in each line, and the structure of the text." Accordingly, the computer has determined the traditional expressive elements of authorship, and therefore the work is the product of the machine and is not protected by copyright.
This gets particularly tricky when artificial intelligence is used in conjunction with human creativity. In February of 2023, the Copyright Office rejected registration of a graphic novel or comic book, "Zarya of the Dawn," which included human-authored text and images generated by the AI system Midjourney. ("Cancellation Decision re: Zarya of the Dawn," VAu001480196 (U.S. Copyright Office, Feb. 21, 2023)). The Copyright Office noted that the work as a whole was a copyrightable work, but the individual images themselves could not be protected by copyright. 88 FR at 16191. Particular care must be taken with such works to avoid losing protection completely.
The Notice concludes with guidance for those seeking registration, explaining that applicants should name human authors or artists on the application, but not AI technologies or companies; instead, the latter should be identified in connection with "material excluded" from the registration. Realizing that this may be confusing or unduly limiting, the Notice also states that applicants "may simply provide a general statement that a work contains AI-generated material. The Office will contact the applicant when the claim is reviewed and determine how to proceed." Id. at 16193.
In addition to works of fiction and images, AI systems are being used to generate computer code, raising the possibility that future commercial software may include portions that are ineligible for copyright protection. In addition to cautioning developers about the use of AI systems in their work, enterprises may wish to review and revise internal policies. A "use of AI systems" policy may ultimately be as important as trade secret and confidentiality provisions.
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