‘Rarely has new tech presented such great potential’: Lawyers react to US' gen AI outreach

US Copyright Office launches inquiry to address ownership, usage, and legal rights of generative AI | Inquiry builds on its ‘careful study of issues at the intersection of copyright and emerging technologies’ say lawyers | Comment from Finnegan, Dickson Wright, Cooley, Haynes Boone, Ashurst.

The US Copyright Office has released a notice of inquiry (NOI) and request for comments on copyright and AI, via the Federal Register.

The office’s outreach initiative, published yesterday, comes as a response to the increasing prominence of generative AI, which has spurred discussions about the ownership, usage, and legal rights associated with AI-generated creations.

The initiative seeks to address the challenges arising from generative AI and explore whether regulatory actions are required to ensure coexistence between AI advancements and copyright protections.

Shira Perlmutter, register of copyrights and director of the US Copyright Office, said in a press release: “We launched this initiative at the beginning of the year to focus on the increasingly complex issues raised by generative AI.

“This NOI and the public comments we will receive represent a critical next step.

“We look forward to continuing to examine these issues of vital importance to the evolution of technology and the future of human creativity.”

The office is actively inviting contributions from stakeholders and experts to provide factual information and diverse perspectives on the evolving relationship between AI and copyright.

Key issues of the NOI include the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, the legal status of AI-generated outputs, and the appropriate treatment of AI-generated outputs that mimic personal attributes of human artists.

The NOI is a progression within the office's AI initiative, launched earlier in 2023.

It builds on the input and questions gathered by the office so far, aiming to gather feedback from a broad range of participants.

So far this year, the office has held four public listening sessions and two webinars.

WIPR spoke with experts specialising in copyright law regarding the ongoing inquiry, the task facing the Copyright Office, and the broader landscape of AI’s impact on copyright.

Angela Dunning, partner at  Cooley: “Rarely has a new technology presented such great potential to 'promote the progress of science and useful arts'”

“The office’s focus on generative AI is not new.

“It has spent years studying and preparing to provide guidance around key issues of authorship and registrability of works generated in whole or in part by computer programs and, more recently, generative AI tools.

“To date, the Copyright Office has adhered to an interpretation of the Copyright Act requiring that a work be authored by a human to be registrable.

“The office has also emphasised the question of ‘control’ in finding that copyright protection did not extend to certain images in a graphic novel that had been created using a generative AI art platform, reasoning that the human user of that tool “lack[ed] sufficient control over generated images to be treated as the ‘mastermind’ behind them.”

“But this question of control is not an easy one and will only get more difficult as the currently available generative AI tools become more powerful and new tools evolve, allowing for greater command over the final outputs.

“The Copyright Office acknowledges this, posing the question in its NOI whether there are ‘circumstances where a human’s use of a generative AI system could involve sufficient control over the technology, such as through the selection of training materials and multiple iterations of instructions (‘prompts’), to result in output that is human-authored?’

“The office and courts should continue to evaluate the issues outlined in the NOI and apply well-settled law to the facts and circumstances of specific cases.

“Rarely has a new technology presented such great potential to ‘promote the Progress of Science and useful Arts’. US Const., Art. I, Sec. 8, Cl. 8. This is the constitutional backbone of copyright protection in the US.

“Although there are certainly challenges to work through, reasoned consideration of the questions posed by the office should entail due regard for the extraordinary potential of nascent (and as-yet-unconceived) AI tools to transform and expand who can create (and what and how) to the ultimate benefit of individuals, companies, and the world at large.”

Jenevieve Maerker, counsel at  Finnegan: “We may ultimately see a comprehensive whitepaper”

“As explained in the NOI, the Copyright Office has been engaging deeply this year with issues relating to AI and copyright, which have been the subject of significant interest from Congress, the public, and litigants in various court cases.

“This NOI is the office’s latest effort to gather input from as many stakeholders as possible (following up on public listening sessions and private meetings with stakeholders) as it grapples with the complex issues presented by generative AI technology.

“I think we can expect to see responses from many quarters, including trade associations, individual companies from the content and tech industries, legal academics, and other stakeholders.

“The Copyright Office has a track record of careful study of issues at the intersection of copyright and emerging technologies.

“It could take a year or two, but we may ultimately see a lengthy, comprehensive whitepaper, and, depending on what the office concludes, possibly some regulatory guidance or legislative recommendations.”

William Honaker, partner at  Dickson Wright: “AI is too general a term and encompasses more than what was intended in the Copyright Registration Guidance”

“The office’s request also provides 34 specific questions to be answered and a Glossary of Terms—the glossary is critically important to focus the discussion.

“This was missing in the Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence published on March 6, 2023, which leads to confusion on what AI is referenced.

“‘AI’ is too general a term and encompasses more than what was intended in the Copyright Registration Guidance. Having the definitions in this request focuses the discussion.

“The first and third questions seem to be answered by existing copyright law.

“The use of copyrighted works in the sense of reviewing them and learning from them is not copyright infringement. Whether the liability rests with the user who created the prompts or the developers of the system and dataset or an apportionment between the two is an intriguing question.

“Clearly, someone who uses generative AI receives results copied from copyrighted works, and then posts the results, infringes.

“The harder question is whether the developers of the system and dataset have infringed. If the result copies or creates a derivative of a copyrighted work, the display of that result would be an infringement.

“Under existing copyright law, there would be no apportionment, both infringers would be liable for damages.

“This seems to be a question that only Congress can answer.

“The question of whether the creation of datasets would be an infringement depends upon how the dataset is accessed. If the data set is copied into a third-party repository, then there is likely copyright infringement because it was copied.

“If the dataset is only scanned for learning purposes, then it seems that there would be no infringement. That is like reading articles online and learning from them. Reading and learning from an article or enjoying an image is not copyright infringement.

“The second question is more intriguing and interesting. How much human input is required for copyright protection? Can a carefully created or iterated prompt or a certain dataset create copyrightable works?

“Under the existing guidelines, the answer is no. I don’t see this changing without Congressional intervention.

“However, it is somewhat like using a digital camera. These images are copyrightable. But the user merely ‘prompted’ the camera by pointing it and the AI within the camera did the rest.

“It isn’t generative AI, but it is AI.

“It seems that the fourth inquiry is outside copyright law and falls within the state rights of publicity and unfair competition.”

Dina Blikshteyn, partner at  Haynes Boone: “A step in the right direction”

“The office’s request for comments highlights a legal uncertainty surrounding AI-generated content and AI models that produce it.

“This is an evolving area of law that affects multiple parties, including creators of AI models, authors whose copyrighted content is used to train AI models, and the end users of AI models whose input creates the AI-generated content.

“Senator Coons highlighted these issues at the Senate’s IP Subcommittee’s hearing on July 12, 2023, when he played an AI-created song to the tune of Frank Sinatra’s New York, New York, using Sinatra’s voice.

“The request for comments is a step in the right direction because it shows that the Copyright Office is also thinking about these issues.

“Moreover, the request offers an opportunity for all parties to advocate for benefits and/or harms that result from the AI models.”

Sunny Kumar, partner and head of UK IP, at  Ashurst, London: "It appears this office is gearing up to see whether the law on copyright is being overstretched by the capabilities of AI”

"On August 18, 2023, in Thaler v Perlmutter, Judge Beryl Howell affirmed the US Copyright Office's decision that a work generated entirely by AI with no human input is not copyrightable, reaffirming the office's guidance issued in March 2023 that copyright only protects material that is the product of human creativity.

“In Thaler v Perlmutter, the judge found that ‘authorship’ has been synonymous with human creation over time and ‘[h]uman authorship is a bedrock requirement of copyright’. The Judge also flagged, however, that the law has ‘never stretched so far…as to protect works generated by new forms of technology operating absent any guiding human hand’.

"It appears this office is gearing up to see whether the law on copyright is now indeed being overstretched by the capabilities of AI, particularly generative AI models that require limited human input in the generation of their outputs.

“The first general question posted for public comment by the office notes that ‘generative AI systems have the ability to produce material that would be copyrightable if it were created by a human author’.

“Perhaps the future will see the office take off its firm hand on its view on human authorship and consider the extent to which AI tools can distance the 'guiding human hand' from the creation of copyrightable works.

"The office’s announcement also signals yet another jurisdiction attempting to piece together whether and to what extent their legal and regulatory frameworks need adjusting in response to questions around copyright poised AI.

“The UK government has been working with users and right holders on a code of practice on copyright and AI, with an aim to make licences for data mining more available.

“The EU has taken a more comprehensive view in fleshing out frameworks governing AI, with the current form of the proposal for the  EU AI Act starring a tier-based definition system for AI (general purpose AI, foundation models and generative AI) in order to be able to capture its evolving capabilities and proposing specific transparency requirements for generative AI systems, requiring detailed summaries of the copyrighted data used for their training."

Those who wish to participate in the Copyright Office’s request for comments are urged to submit initial written comments by 11:59pm ET on October 18, 2023. Reply comments are due by 11:59pm ET on November 15, 2023.

Detailed instructions for submitting comments can be found on the office’s  website.

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