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Should AI-Created Works Receive Copyright Protection? The Debate Wages On

by | Dec 13, 2023 | Copyrights, Intellectual Property

Back in October, I wrote about how a number of famous authors were banding together to file a lawsuit against OpenAI for copyright infringement. Novelists, of course, are not the only creatives who believe they are being negatively impacted by artificial intelligence – nor are they the only ones fighting back. In fact, professionals from all walks of creative life have been concerned about how AI impacts intellectual property, and they are calling on the U.S. government to take a clear stance on how AI is allowed – and not allowed – to use copyrighted material.

How have they been doing this? By writing letters to the U.S. Copyright Office.

Thousands of Letters – All Read By Human Beings

According to Shira Perlmutter, Register of Copyrights and Director, US Copyright Office, the office had received around 9,700 comments on the issue of AI and copyright in a period that ended in late October. “Every one of them is being read by a human being, not a computer,” she said in an interview. “And I myself am reading a large part of them.” 

What are these letters saying?

Here are just a few examples of comments that creative professionals have written to the Copyright Office:

“Please regulate AI. I’m scared.”

“[This] appears to many of us to be the largest copyright violation in the history of the United States.”

“[AI is] nothing more than a plagiarism machine.”

“…it’s like a gun — in the wrong hands, with no parameters in place for its use, it could do irreparable damage.”

Despite this deluge of angry and frightened exhortations landing on her desk, Ms. Perlmutter and the Copyright Office have yet to make any decision regarding how AI fits into the overall intellectual property landscape.

Two Questions the Copyright Office Is Being Asked to Decide On That Could Reshape the IP Landscape 

It is no small thing that Perlmutter’s office is being asked to decide. Their decision will have a huge impact on what constitutes creative work in this country going forward and who – or what – is allowed to receive protection for it.

Essentially, there are two questions that must be answered:

  1. Should companies be allowed to train their AI systems by “feeding” them copyrighted material without providing copyright holders compensation – or even asking their permission?
  2. Can people who “make” AI-generated works receive copyright protection? Or, as Perlmutter puts it: “…is there a point at which there’s enough human involvement in controlling the expressive elements of the output that the human can be considered to have contributed authorship?”

These are the questions that have been posed to the public, and they have resulted in an influx of opinions to the Copyright Office, with strong assertions on both sides.

“They’re stealing our work!” vs. Fair Use

By and large, the opinion on the creative side of the aisle seems to be some version of the idea that, by using their work without permission to train their systems, companies are violating copyright laws – and therefore, they owe artists compensation. In contrast, tech companies argue that what they are doing falls squarely under the fair use doctrine, which allows for some tolerated infringement in service of educational purposes. But are AI companies doing this for education or for profit?

Legal results have been a bit of a mixed bag. While the Copyright Office has, thus far, refused to grant any copyrights for AI-generated work, a ruling at the end of October by a judge in the US District Court for the Northern District of California against visual artists suing three AI companies for using their work may be a sign that “fair use” will rule the day.

However, the Copyright Office has not come to any decision yet. In fact, they are currently reading through a second batch of letters, submitted through December 6th.

Whatever your opinion is on this issue, this is a decision that all creatives and IP lawyers will be following closely – I know I will!


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