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  • Writer's pictureChris Reel

Artificial Intelligence and Copyrights: The Update We've Been Waiting For

As of today, March 16, 2023, the United States Copyright Office has officially weighed in on whether works created by artificial intelligence are protected under copyright law.

In one of my earlier posts, I brought up key questions surrounding this topic, including, whether AI-generated 'stuff' can even be considered copyrightable under current U.S. copyright law. You can read more on that here.

The Copyright Office has done us all a solid and at least started to reveal the roadmap here... and it goes something like this:

If you use AI to create something you might be able to copyright it.

Clear as mud, right? Here's how it works...

1. If you use AI to create something in its entirety it's not copyrightable.

The reason for this is that it is not made by human creation. There is precedent that concluded that works created by animals are not protected under copyright law. However, just like creations by animals, if you arrange something created in its entirety by AI then the arrangement can be protected.

This arrangement approach is similar to the 'collective work' classification to a degree that has long-since been an avenue for copyright protection. A 'collective work' does not protect the individual components of the work but arrangement of the work in its entirety.

So, in this case, the arrangement of the AI-generated works would be protected under copyright law, but not the individual AI-generated creations. Think encyclopedias. The arrangement of the content is protected, but not the content itself.

2. If you can maintain creative control over the works created by AI, it is likely copyrightable.

We've used technology to create stuff since forever. Think about the use of Photoshop, Canva, Garage Band, etc.. Human hand and mind are behind the masterpiece, and it is the human hand and mind that control the process and ultimate outcome. The technology is just the instrument being used.

Now with AI, we know that it's not just tech that humans have control over. AI takes a set of instructions and datapoints and creates something independent of human intervention or control. So out of the gate AI-generated works are not copyrightable. But, what about human created works that use the AI-generated works as a foundation?

This is what the Copyright Office considers as copyrightable. Alter the AI-generated work enough and it'll be protected under copyright law. Why? Because the creativity is vested back in with the human being. AI may have set the framework or foundation, but if a human intervenes and creates something that originates through the AI-generated work, it will be protectable via copyright law.

Here's the one limitation, though... copyright protection is limited to those components of the work that were actually created by human hand and mind.

So where do we go from here?

The Copyright Office has done a great job applying precedence to its copyrightability analysis of AI-generated works. This is hard to do, because often times precedent is archaic and doesn't typically align with technological or societal developments.

We now know that arrangements of AI-generated works (e.g. collective works), can be protected. We also know that human-generated works based off of or stemming from AI-generated works are protected.

One Final Thought...

This is going to get really interesting in the courts. Claims of copyright infringement based off of copyrighted material that include AI-works will be sliced and diced, out of necessity if not anything else.

There will be increased scrutiny by litigants as to whether the purported copyright holder has the rights they claim to hold (i.e. did they include proper reference to AI-work and therefore limitations on copyright claims?). Not to mention, there will be inevitable judicial intervention concerning the fine line between where AI-generated works stops and human-generated works begin.

Here's to seeing how this plays out!

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