On the heels of one of the first district court decisions that denied a copyright for AI-generated work that entirely lacked human authorship and left open the question of what level of human intervention will be required in order to qualify for copyright protection in the future, as explained in our recent alert about Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023), the Copyright Office issued a “Notice of Inquiry on Copyright and Artificial Intelligence” (Notice). That Notice requested input from the public regarding “the scope and level of human authorship, if any, in copyright claims for material produced in whole or in part by generative AI.” As it explained, the Copyright Office has sought this input because, “over the past several years, the Office has begun to receive applications to register works containing AI-generated material, some of which name AI systems as an author or co-author” and “[a]t the same time copyright owners have brought infringement claims against AI companies based on the training process for, and outputs derived from, generative AI systems.”
To this end, the Notice seeks views from the public regarding “a number of copyright issues raised by recent advances in generative AI” relating to 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 Notice also seeks information about “the collection and curation of AI datasets, how those datasets are used to train AI models, the sources of materials ingested into training, and whether permission by and/or compensation for copyright owners is or should be required when their works are included.”
This Notice is a crucial next step in the Copyright Office’s AI initiative, and it will be interesting to see the views submitted for what threshold of human authorship should be required for copyright protection. Possible levels of human authorship may include “substantial contribution,” whether the “traditional elements of authorship” were conceived and executed by a human, thresholds such as whether more than 50% of the work was created by a human, more than just de minimis contribution, or if the AI work was directed, trained or guided by human authors.
We will monitor and provide future alerts regarding the initial comments (due Oct. 18) and the full scope of responses (due by Nov. 15).
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