Tricky questions about AI ownership prompt the Copyright Office to seek public input

On Wednesday, the US Copyright Office began gathering public comments on issues related to AI systems and copyright. The public comment period, which begins August 30, aims to explore the complex intersection between artificial intelligence technology and copyright laws, and concludes November 15. Comments may inform how the agency decides to grant royalties in the future.

Outlined in a 24-page document released as a PDF file by the Federal Register, the “Notice of Investigation and Request for Comments” asks questions with far-reaching consequences for intellectual property in America.

Specifically, the Office is interested in four main areas: the use of copyrighted materials to train AI models and whether this constitutes infringement; the extent to which AI-generated content should or could be copyrighted, particularly when a human has exercised some degree of control over the operations of the AI ​​models; how liability should be enforced if AI-generated content infringes existing copyrights; and the impact of AI mimicking human artists’ voices or styles, which, while not strictly related to copyright, may involve state laws related to publicity rights and unfair competition.

Comments are sought to address these concerns because, in a relatively short period, we have seen the arrival of generative AI tools with astounding capabilities that can reproduce images and videos, mimic voices, answer questions, and compose text on demand. AI models have generated hype and backlash, huge corporate investments and lawsuits. These cases have alerted the Copyright Office as the frequency of AI-related copyright incidents increases:

In recent years, the Office has begun to receive requests to register works containing AI-generated material, some of which mention AI systems as author or co-author. At the same time, copyright holders have filed infringement actions against AI companies based on the training process and results derived from Generative AI systems.

As concerns and uncertainties mount, Congress and the Copyright Office have been approached by many interested parties with differing viewpoints. Earlier this year the Office publicly announced a broad initiative to explore these issues. This Notice is part of that initiative and builds on the Office’s research, expertise and previous work, as well as information that interested parties have provided to the Office.

Among the incidents reported in the Copyright Office filing are stories we’ve covered in the past, including the first latent release artwork registration to Kris Kashtanova, which was granted in September and conditionally rescinded in February; an attempt to register an AI-created artwork exclusively on a machine by Stephen Thaler (who has attempted similar things with patents), which a judge rejected this month; and a copyright lawsuit against OpenAI on behalf of Sarah Silverman regarding the company’s use of her copyrighted works in ChatGPT training data. Additionally, in January the artists sued Stability AI, Midjourney and DeviantArt in a class-action lawsuit over alleged copyright infringements.

In response to similar copyright concerns, several news organizations (including Ars Technica’s parent company Conde Nast) recently took steps to block OpenAI’s web crawler, hoping it will prevent OpenAI from fetching data used to train future models. of artificial intelligence. Most large language models, such as those that power ChatGPT, learned about the world by absorbing billions of documents found openly online, usually without consulting copyright holders.

The flexible arm of the law

The cover of
Zoom in / The cover of “Zarya of the Dawn”, a comic created using Midjourney’s AI image synthesis in 2022 and subject to a copyright dispute.

Kris Kashtanova

While US copyright law is fixed, its interpretation of emerging technology is nuanced and can change depending on how regulators (and judges) think about the subject, which depends in part on public sentiment.

Under current interpretation, AI-powered artwork can be copyrighted in the United States as part of a larger work, created by a human being, but not individually. And we have seen that copyright does not extend to creative works without any human authorship. However, there are still unanswered questions about what degree of human involvement might trigger the copyright registration threshold, similar to those that arose with the invention of the camera in the 19th century.

In 1884, the defendant in Burrow-Giles Lithographic Co. v. Sarony he argued that photographs could not be subject to copyright because a photo is “a reproduction on paper of the exact characteristics of some natural object or some person”. They argued that a photo is the work of a machine and not a creative expression. But the court ruled that the photos can be copyrighted because they are “representatives of original intellectual conceptions.” [an] author.”

The question today is: What action in using a machine learning tool counts as “an author’s original intellectual conception?” Is it the selection of the particular AI tool? The input of a prompt? Curing or modifying the resulting machine-generated output? While current US copyright guidelines seem to sidestep these questions, the Copyright Office is open to hearing the public’s views.

Furthermore, the Copyright Office would like to hear your views on the unresolved issue of including copyrighted material in training datasets, notably writing: “The Office is aware that there is disagreement about whether and when the use of copyrighted to develop datasets for training AI models (in both generative and non-generative systems) is an infringement.”

But that is not all. The original 24-page request document is a fascinating look into the minds of current US copyright regulators and includes 34 multi-part questions of interest to the Copyright Office that would require another 24-page document to clarify in detail.

The deadline for written comments is October 18, and they can be submitted online via a form. Response comments must be sent to the Copyright Office by 15 November.

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