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16 March 2023CopyrightSarah Speight

US clarifies when AI-assisted work can be copyrighted

US Copyright Office issues guidance on copyright for works of art created using AI | UK promises to offer clarity over rules for generative AI companies | Addleshaw Goddard | Osborne Clarke.

The US Copyright Office ( USCO) has published guidance in an attempt to clarify copyright concerns related to works of art generated, in full or in part, by artificial intelligence (AI).

In a  statement issued yesterday, March 15, the office decreed that under certain circumstances, some works of art created with the assistance of AI may be copyrighted.

Each copyright claim will be evaluated circumstantially, depending on the work of art itself, the level of human creativity involved, how the AI tool operates and how it was used to create the final work, said the office.

Given the way generative AI tools work, by using human prompts to generate textual, visual or audio content, “the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user,” said the office.

In order to obtain copyright, applicants will be obliged to disclose that their artwork utilises AI-generated or AI-assisted material. In addition, previously filed applications that do not disclose AI’s role in the work must be corrected by submitting a supplementary registration.

The guidance, it said, comes in response to questions raised by generative AI technologies, such as whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the office by applicants seeking to register them.

“These are no longer hypothetical questions,” the USCO said, “as the office is already receiving and examining applications for registration that claim copyright in AI-generated material.”

Thaler’s Paradise

For example, it cites an application received in 2018 for a visual work that the applicant,  Stephen Thaler—creator of the  much-debated AI machine DABUS—described as “autonomously created by a computer algorithm running on a machine”.

The application was denied because, based on the applicant’s representations in the application, the examiner found that the work contained no human authorship.

The work could not be registered because it was made “without any creative contribution from a human actor.” That work was Thaler’s computer-generated Entrance to Paradise, the author of which Thaler described as his  ‘Creativity Machine’.

More recently, in February this year, the USCO  retracted an earlier copyright for the graphic novel Zarya of the Dawn by Kris Kashtanova, which comprises human-authored text combined with images generated by the AI tool Midjourney.

It concluded that Kashtanova was the author of the text as well as the “selection, coordination, and arrangement of the work’s written and visual elements”, but that the images themselves could not be protected by copyright.

Human authorship

When evaluating works submitted for registration that contain human authorship combined with uncopyrightable material—including material generated by or with the assistance of technology—the USCO leans on guidance provided in its Compendium of US Copyright Office Practices.

It begins by asking “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.”

The USCO said: “In the case of works containing AI-generated material, the office will consider whether the AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental conception, to which [the author] gave visible form.’

“The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. This is necessarily a case-by-case inquiry.

“If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the office will not register it.”

Meanwhile, for copyright issues not addressed in its statement, the USCO said it has launched an “agency-wide initiative to delve into a wide range of these issues”.

The office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs.

UK pursues AI ‘sandbox’

Meanwhile, the UK’s chancellor announced in yesterday’s  Spring Budget that the government will launch an ‘AI sandbox’ “to trial new, faster approaches to help innovators get cutting-edge products to market, and will work at pace with the Intellectual Property Office [IPO] to provide clarity on IP rules so generative AI companies can access the material they need”.

Following its consultation on artificial intelligence and IP, the UK government  announced last June that it will not change patent inventorship criteria or copyright computer-generated works provisions. Instead it said it plans to amend a copyright law relating to data mining.

Andana Streng, managing associate in IP at Addleshaw Goddard, said of the announcement: “The IPO has already consulted on expanding the exceptions to text and data mining so that AI system could more easily access online material, and rights holders were emphatically against the introduction of new exceptions for such purposes so it is unclear what more the IPO can do.

“Pressure from the government to expand the IP rules will rightly cause angst for the rights holders that their commercial interests and their hard earned intellectual work are sacrificed to fit the political agenda.”

Robert Guthrie, IP partner at Osborne Clarke, said: “Clarity on the interface between generative AI systems and IP law will be very welcome. This is a topic that is already generating litigation.

“Issues arise not only in relation to the existence and ownership of IP in relation to outputs but also—arguably more contentiously—in relation to IP attaching to the vast datasets used to train these systems, often scraped from the web.”

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More on this story

Copyright
24 February 2023   US Copyright Office reviewed case after use of AI tool came to light | Decision to retract copyright for the AI-generated images brings the crossover between human and AI authorship under the spotlight.
Patents
28 June 2022   The UK government will not change patent inventorship criteria or copyright computer-generated works provisions following its consultation on artificial intelligence and IP, but it plans to amend a copyright law relating to data mining.