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Continuing Conundrum between Copyright and AI: Copyright Office Provides Guidance

Post Authored By: Natalie Elizaroff

In the world of technology and innovation, the intersection of copyright, intellectual property (IP), and artificial intelligence (AI) is becoming increasingly complex. As AI technologies continue to advance and become more prevalent, questions around the ownership, protection, and attribution of intellectual property are arising.

With all the questions milling in the air and in a progressive move, the United States Copyright Office announced that it will be examining copyright law and policy issues raised by AI. This comes as a direct response to the rapid growth that AI has experienced and the public’s outcry for clarification in registering AI-generated content. [1] As an immediate measure, the Office issued new guidance on how copyright law applies to AI creations. For the most part, the Copyright Office said that the copyrightability of works created using or implementing AI will be determined on a “case-by-case” basis.

37 CFR Part 202: Works Containing Material Generated by Artificial Intelligence

According to the Copyright Office, AI-generated works can be eligible for copyright protection if they exhibit sufficient human authorship. This means that if a human being played a significant role in creating the work, such as by providing the AI with the parameters or data needed to generate the work and also controlling the expressive elements that the AI output, then the work may be eligible for copyright protection. Unfortunately, “[b]ased on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material.” [2]

The Copyright Office did go on to say that “a human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship.’” Additionally, copyright protection may be obtained if an artist modified a work that was originally generated using AI technology to a degree that the modifications met the standard for copyright protection. In such cases, the copyright “will only protect the human-authored aspects of the work, which are ‘‘independent of’’ and do ‘‘not affect’’ the copyright status of the AI-generated material itself.” [3]

One of the biggest changes for AI copyrightability comes from the new requirement for authors to “disclose the inclusion of AI-generated content in a work submitted for registration.” [4] Accordingly, authors must distinguish which content is human-authored and which content is AI-generated. The Copyright Office stated that if applicants are not sure how to refer to the AI-generated content, it recommends providing a general statement that the work contains AI-generated content. This raises a flag for the Copyright Office to do additional inquiry and determine the best outcome for the applicant.

Regarding artists who have pending applications or have already registered works that contain AI-generated content, the Copyright Office suggests correcting the public record by submitting a supplementary registration. Any failure to accurately reflect the role of AI in copyrighted works could result in “losing the benefits of the registration.” [5] This puts authors in a bit of a precarious situation because, depending on the circumstances, they may lose their copyright protections either way.

Copyright Office AI Initiative

There is a lot of work left to do to provide a clear framework for AI-generated content. The Copyright Office’s statement of policy is the first step in providing transparency. As a second step, the Copyright Office has scheduled a series of public roundtable-format listening sessions that will provide an opportunity to discuss the goals and concerns of using AI in creative fields.

The Scope of Copyright in Works Generated Using AI Tools

Several inquiries are likely to arise during these discussions, one of the main questions being whether works generated using AI tools should be eligible for copyright protection, and if so, who should be considered the author of those works. This is a complex issue, as AI systems are designed to learn and create based on data inputs, rather than expressing original ideas in the same way that human authors do.

One solution to this problem is to consider AI-generated works as works created by a tool rather than an author. In this case, the owner of the AI system would own the copyright to the work, much like a person who owns a pen would own the copyright to a written work. However, this approach raises questions about the level of creative input required from the AI system for it to be considered the creator of a work.

Another solution is to consider AI-generated works as joint creations between the AI system and its human creator. In this case, the human creator and the AI system would share the copyright. However, this approach also raises questions about the level of creative input required from the human creator for them to be considered a joint creator.

Ultimately, the Copyright Office’s examination will need to address these issues and provide guidance on how copyright law should apply to works generated using AI tools.

The Use of Copyrighted Materials in AI Training

Another matter likely to arise is the use of copyrighted materials in AI training. AI systems require large amounts of data to learn and improve their performance, and this data often includes copyrighted materials such as text, images, and videos. Ideally, the roundtable discussions should establish whether the use of copyrighted materials in AI training falls within the scope of fair use, or whether new exceptions or limitations to copyright law may be needed to support the development of AI technologies.

Implications for the Future of Copyright and AI

The Copyright Office’s examination of copyright law and policy issues raised by artificial intelligence is an important step in addressing the unique challenges posed by AI technologies. As AI systems become more advanced and capable of creating original works, it is important for lawmakers and legal scholars to consider how existing laws and frameworks may need to be adapted to address the unique challenges posed by AI-generated works, while also supporting the development of AI technologies. The Copyright Office’s AI initiative and the public’s contribution to the roundtable discussions will be critical in shaping the future of copyright and AI, and in supporting the continued growth and development of these important technologies.

[1] U.S. Copyright Office, Copyright Office Launches New Artificial Intelligence Initiative (Mar. 16, 2023),

[2] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16192 (March 16, 2023) (to be codified at 37 C.F.R pt 202).

[3] Id., 517 U.S.C. 103(b).

[4] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16193 (March 16, 2023) (to be codified at 37 C.F.R pt 202).

[5] Id.

About the Author:

NatalieElizaroff - Headshot

Before pursuing a legal career, Natalie spent several years in the microbiology department at Evanston Hospital where she conducted comparative research studies, performed quality control testing, and worked on state-of-the-art medical device technology. After doing a swift 180 and finding law as her true calling, Natalie focused her efforts into intellectual property.

Natalie received a Bachelor of Science in Molecular Biology, with a minor in Biostatistics from Loyola University Chicago. She earned her law degree from UIC School of Law and she is currently working as an Associate at Advitam IP LLC, where she handles a variety of IP matters including trademark litigation, copyright infringement, and other IP-related disputes.

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