The Intersection of Generative AI and Copyright Law

Posted on March 14, 2023

AI-generated art cannot receive copyrights, US court says

What is clear is that the copyright framework for AI-generated works is still evolving, and just about everyone can agree on that. Like many individuals and organizations, our views may well shift as we learn more about the real-world impacts of generative AI on creative communities and industries. It’s likely that as these policy discussions continue to move forward and policymakers, advocacy groups, and the public alike grapple with the open questions involved, the answers to these open questions will continue to develop. Changes in generative AI technology and the models involved may also influence these conversations. Today, the Copyright Office published issued a notice of inquiry on the topic of copyright in AI-generated works.

Whether and how these rules will survive and be shaped during this process will be consequential to the future of copyright in the age of generative AI. Perhaps additional transparency also on this stage of the political process – not just on copyright inputs – would be beneficial for the final outcome. Whether one agrees or disagrees, the truth is that the opt-out approach is in the law and seems to be gathering momentum, both in practice and in EU policy making.

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On the other hand, the fanfiction writer believes that his use is permitted by the fair use doctrine because it is transformative. If the copyright owners are correct, and fanfiction is a tolerated infringement, then under 17 U.S.C. § 103(a), the fanfiction writer has no copyright in his original contributions. If the fanfiction writer is correct, and his reuse of characters and plotlines is a fair use, then he has a copyright in his original contributions. Notwithstanding this assertion, there is no way to assess the attitudes of millions of fanfiction writers to AI. In any event, many of the assertions that have been made with respect to fanfiction writers are demonstrably incorrect. The recent episode of “The Daily,” for example, first asserted that fanfiction writers had no copyright in their original creations because they were based on other, preexisting works.

For example, without it, AI could be trained on only “safe materials,” like public domain works or materials specifically authorized for such use. Models already contain certain filters—often excluding hateful content or pornography Yakov Livshits as part of its training set. However, a more general limit on copyrighted content—virtually all creative content published in the last one hundred years—would tend to amplify bias and the views of an unrepresentative set of creators.

Overview of Generative AI Technologies and Copyright Protection

On the other hand, the manner in which generative AI systems can be used is far ranging—a user of these systems may produce seemingly identical copies of protected works and/or produce works that are intended to be market substitutes. Outside of the United States, other countries have provided explicit guidance on the use of copyrighted works in text and data mining applications (TDMs). TDM involves using computational techniques to analyze large amounts of data in order to identify patterns, trends, and other useful information. TDM is used for various purposes, including training artificial intelligence systems. Territories with exceptions include the United Kingdom, the European Union, Japan, and Singapore. Notably, at the time of writing of this article, the United Kingdom’s exception applies only to non-commercial purposes.

By now, you might have heard of some of the lawsuits filed against AI companies, alleging that they infringed on copyright in the training of their models. AI-generated vocals are roiling the music industry, with platforms acting to take down infringing content. Authors and copyright holders are concerned that generative AI tools are built on the unauthorized and unremunerated use of their works, while at the same time negatively impacting their livelihood.

Yakov Livshits
Founder of the DevEducation project
A prolific businessman and investor, and the founder of several large companies in Israel, the USA and the UAE, Yakov’s corporation comprises over 2,000 employees all over the world. He graduated from the University of Oxford in the UK and Technion in Israel, before moving on to study complex systems science at NECSI in the USA. Yakov has a Masters in Software Development.

ChatGPT prompts

The U.S. Copyright Office has issued guidance that explains the requirement for human authorship to be granted copyright protection and provides information to creators working in tandem with AI tools on how to effectively and correctly registered their works. Part of the reason is that vastly greater amounts of data are being used to train AI models. For example, it has been reported that certain computer vision-based generative AI platforms were trained on more than two billion captioned images.

According to the Office, in these cases, the AI technology, rather than the human user, determines the expressive elements of the work, making the generated material ineligible for copyright protection. The largest issue regards whether infringement occurs when the generative AI is trained or used.[1] Popular deep learning models are generally trained on very large datasets of media scraped from the Internet, much of which is copyrighted. Since the process of assembling training data involves making copies of copyrighted works it may violate the copyright holder’s exclusive right to control the reproduction of their work, unless the use is covered by exceptions under a given jurisdiction’s copyright statute. Additionally, the use of a model’s outputs could be infringing, and the model creator may be accused of “vicarious liability” for said infringement. As of 2023, there are a number of pending US lawsuits challenging the use of copyrighted data to train AI models, with defendants arguing that this falls under fair use. Currently, copyright protection is not granted to works created by Artificial Intelligence.

Can AI content be copyrighted?

They should also demand broad indemnification for potential intellectual property infringement caused by a failure of the AI companies to properly license data input or self-reporting by the AI itself of its outputs to flag for potential infringement. Both individual content creators and brands that create content should take steps to examine risk to their intellectual property portfolios and protect them. This involves proactively looking for their work in compiled datasets or large-scale data lakes, including visual elements such as logos and artwork and textual elements, such as image tags. Obviously, this could not be done manually through terabytes or petabytes of content data, but existing search tools should allow the cost-effective automation of this task. But there are other, non-technological cases that could shape how the products of generative AI are treated.

Putting aside the technical legalities of copyright law discussed above, media coverage of AI suggests that artists are entitled in some moral sense for their contribution to the training of generative AI systems. Even if these systems were at some point in the future to become profitable, the contribution of any one work to the system as a whole would be miniscule. The vast majority of the enormous amount of content in the datasets from which LLMs are derived is harvested from open sites such as Wikipedia. The marginal contribution of an individual work in the set of works by authors who object to ingestion by AI systems is a small fraction of a small fraction. (Moreover, if multiple works contained similar information, as is often the case, determining the true origin of the information is impossible.) The relationship between a single input and a single output is completely attenuated and indiscernible. Given these logistical challenges, most of the money collected by a collective rights organization would be spent on overhead and little, if any, would go to individual authors.

It’s important to note at this point that it’s unlikely the USCO’s decision will be the final word on whether generative AI output is copyrightable. Downing thinks it’s likely the USCO will soon come across a software copyright registration application that mentions Copilot, triggering a back and forth with the USCO over the applicability of the new guidelines to software and testing the strictness of the USCO’s demand for evidence of modification to AI-generated content. Allen requested that the Copyright Office reconsider its initial refusal and register the entire artwork. The Copyright Office affirmed its rejection and concluded that although Allen’s human-authored edits made with Adobe Photoshop contained a sufficient amount of original authorship to be registered, the features generated by Midjourney and Gigapixel AI needed to be excluded/disclaimed as non-human authorship. What if the models were trained on licenses, in addition to the original works themselves? It is easy to imagine an AI system that has been trained on the (many) Open Source and Creative Commons licenses.