Rewriting Copyright in the Age of Artificial Intelligence
With the recent development and spread of artificial intelligence (“AI”), the United States Copyright Office (“USCO”) has had to grapple with what this new reality means for copyright law.[1] In mid-March of 2023, the USCO provided some highly anticipated guidance on this matter.[2] This came after a decision issued by the USCO in February, in which the Office denied copyright protection for images generated by AI system Midjourney.[3] In its decision, the Office stated, “copyright protection depends on whether AI’s contributions are the result of mechanical reproduction, such as in response to text prompts, or if they reflect the author’s own mental conception.”[4] Thus, moving forward, copyright protection for AI generated works will depend on how the system operates and how much human involvement is in the work’s final conception.[5] Under this new rule, works created solely by AI systems will be deemed ineligible for copyright protection by the USCO.[6]
What is Copyrightable?
According to the USCO, copyright protection is a form of intellectual property protection that protects original works created by a human author that are fixed in a tangible form of expression.[7] When copyright protection is granted by the USCO following the registration process, the owner of the copyright obtains the following rights for a period of the author’s life plus 70 years: reproduction, preparation of derivative works, distribution, performance, and display rights.[8] When it comes to AI systems, the question of an author’s humanness is directly implicated.[9]
Courts have also previously recognized the importance of a human author.[10] This is evidenced by the 2018 case, Naruto v. Slater, in which a selfie taken by a monkey was deemed uncopyrightable by the Ninth Circuit.[11] While courts are yet to rule on the copyrightability of AI-generated works, previous cases dealing with the humanness of authors, coupled with the USCO’s new guidance, tell us that a high degree of human involvement is needed for such protection.[12]
Copyright Applied to AI Systems
Recently, there has been an outpour of AI systems that operate using human instructions to produce an end product, which have quickly gained popularity worldwide.[13] Amongst the most popular of these systems include ChatGPT, Midjourney, Craiyon, and DALL-E.[14] However, despite the human element required for these programs to run, there is often a limited amount of human involvement in the AI systems’ final conception.[15] For instance, one might instruct ChaptGPT to write an essay about copyright law.[16] Even with little detail provided by the human author, ChatGPT will produce the essay as instructed, in which case the essay would not be eligible for copyright protection.[17] On the other hand, if the instructor had told ChatGPT exactly what to include in the essay and how to structure it, copyright protection may apply.[18]
With this new development in copyright law comes a lot of unanswered questions.[19] There is no bright line rule on how to assess the level of human input required to make an AI-produced work copyrightable.[20] As technology continues to advance quickly, it is only a matter of time before we have more precedent on AI created works to better guide future copyright decisions.[21]
Footnotes
