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Copyright Office Issues Registration Guidance on AI-Generated Content
Practical Law Legal Update w-038-8590 (Approx. 4 pages)
Copyright Office Issues Registration Guidance on AI-Generated Content
by Practical Law Intellectual Property & Technology
| Published on 17 Mar 2023 • USA (National/Federal) |
The US Copyright Office issued a policy statement noting the human authorship requirement for copyright protection and clarifying its practices for examining and registering works that contain material generated by the use of artificial intelligence (AI).
On March 16, 2023, the US Copyright Office issued a statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence (AI) technology (88 Fed. Reg. 16190 (Mar. 16, 2023)).
The Copyright Office's guidance provides that applicants who use AI technology in creating a work:
- Have a duty to:
- disclose the inclusion of AI-generated content in a work submitted for registration; and
- provide a brief explanation of the human author's contributions to the work.
- May claim copyright protection for their own contributions to that work by providing a statement in the Standard Application describing the authorship that was contributed by a human.
- Must explicitly exclude from the application any AI-generated content that is more than de minimis.
- Should not list an AI technology, or the company that provided it, as an author or co-author because the AI technology was used in creating the work.
Applicants who have submitted applications for works containing AI-generated materials should confirm that the information provided to the Copyright Office adequately disclosed the AI-generated material. If not, applicants should:
- For pending applications, notify the Copyright Office.
- For applications that have already been processed and resulted in a registration, submit a supplementary registration correcting the public record.
Applicants who fail to update properly the public record after obtaining registration risk losing the benefits of the registration by:
- The Copyright Office canceling the registration if it becomes aware that essential information has been omitted.
- A court disregarding the registration in an infringement action if it concludes that:
- the applicant knowingly provided the Copyright Office with inaccurate information; and
- the accurate information would have resulted in refusal of the registration (citing Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 948 (2022)).
The Copyright Office reasoned that:
- Based on precedent, copyright can protect only material that is the product of human creativity.
- The Copyright Office must evaluate how an AI tool operates and how it was used to create the final work on a case-by-case basis.
- AI-generated material is not the product of human authorship in cases where:
- users do not exercise ultimate creative control over how the AI system interprets prompts and generates material; and
- the AI technology determines the expressive elements of its output.
- Works containing AI-generated material may be copyrighted to the extent that they contain sufficient human authorship to meet the standard for copyright protection, such as:
- selecting or arranging AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship; or
- modifying material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.
- Copyright will only protect the human-authored aspects of the work that are independent of and do not affect the copyright status of the AI-generated material itself.
The Copyright Office also launched a new initiative to examine copyright law and policy issues raised by AI. The Copyright Office announced plans to:
- Host, in April and May 2023, roundtable-format public listening sessions to gather information about current technologies and their impact.
- Publish, later this year, a notice of inquiry soliciting public comments on a wide range of copyright issues arising from the use of AI.
Further information on the initiative may be found on the Copyright Office's newly launched webpage.