Introduction

On August 30, the United States Copyright Office published in its Federal Register a notice of inquiry requesting public opinion on a variety of problems relating to the junction of copyright legislation and computational intelligence (AI). The recent notice is the Office's latest step in response to the plethora of copyright issues that have arisen in connection with the use of artificial intelligence (AI) platforms, such as infringement liability when instructing AI systems on copyright content and human authorship obligations.

Increasing Friction between Copyright and Generative AI Leads to Copyright Office Initiative

The Copyright Office's activities on AI concerns accelerated in March, when the bureau announced the creation of a copyright and AI program to investigate policy challenges connected to generative artificial intelligence platforms. The declaration comes after the Office received two registration applications last year, resulting in the agency's first attempts to deal with AI-generated content. In the instance of Zarya of the Dawn, a graphic novel using AI-generated artwork, the Patent and Trademark Office eventually annulled the artificial intelligence-generated artwork portions of author Kristina Kashtanova's copyright registration. The United States District Court for the District of Columbia upheld the Copyright Office's refusal to register the AI-generated image "A Recent Entrance to Paradise" owing to the lack of a human creator in August.

Over the last year, copyright challenges raised by generative artificial intelligence (AI) systems have dominated news headlines in trademark circles. Several U.S. congressional investigations for the relevant IP Subcommittees in the Senate and House of Representatives have focused on generative AI. During those hearings, participants discussed the impact of the federal right of publicity on artist protection, as well as whether or not the use of content protected by copyright to train AI constituted as fair use. Major generative AI firms, like as OpenAI, are facing an increasing number of litigation alleging infringement of copyright and unethical commercial practices, such as stealing user data. Proposed standards for generative AI platforms in the European Union would demand the disclosure of copyrighted content used for training AI models, potentially.

The Copyright Office is collecting opinions on four policy areas based on previous engagements with agency participants on AI problems, including those obtained through public listening events and instructional webinars on the subject.

"(1) using copylefted works to train Intelligence models;

(2) the legality of material generated by AI systems;

(3) the possibility of accountability for infringing works produced by AI systems; and

(4) the consideration of generative AI outputs that replicate human artists' style or identity."

Agency’s Notice Explores Right of Publicity, Infringing AI Outputs and Fair Use Issues

Concerning the use of copyrighted material by AI systems, the Office acknowledged disputes concerning potential infringement responsibility when such content is used to train AI. Representatives from Simplicity AI, which claims that its use of freely accessible content is fair use, and Adobe, which limited its training data to openly accessible and licensed photos, testified at a Senate IP Committee hearing on copyright and AI in July. In addition to feedback on infringement responsibility over training dataset sources, the Office seeks advice on feasible recompense methods for artists who's works are used in such datasets.

While the Office believes the law is unambiguous on the human authorship requirements of U.S. copyright law, the agency is investigating the proper breadth of copyright protection for AI-generated works, including the amount of authority that a human needs to have over an AI system for copyright to arise. Concerning infringement, the Office seeks feedback on how culpability should be allocated when AI-generated works are discovered to be substantially identical to the intellectual property used to train the AI system.

The Office also invites public comments on state right of exposure and unfair competition legislation, as well as international treaties that are involved by AI systems that generate output that replicates a specific artist's voice, likeness, or style. Legislative efforts to establish a national right to publicity have not been universally supported by the artistic community. Just this week, filmmaker and documentary groups expressed concerns to the Senate IP Subcommittee that a right of publicity might limit works that reference the name, likeness, or styles of famous individuals or well-known artists.