U.S. Copyright Office and its Approach to Protection of Artificial Intelligence (AI) - Assisted Works
United States Copyright Office has recently clarified its willingness to consider copyright protection
for works containing AI-generated material along with how it will make those determinations. This clarification is set forth in a notice published March 16, 2023 in the Federal Register. See the notice at: https://public-inspection.federalregister.gov/2023-05321.pdf
The notice states that "In the case of works containing AI-generated material, the office will consider whether the AI contributions are the result of 'mechanical reproduction' or instead of an author's 'own original mental conception,' to which the author gave visible form". Further, the notice indicates that some works may qualify for partial protection, limited to the work's human-generated elements.
The Copyright Office indicates has been receiving and examining applications for registration that claim copyright in AI-generated material. Such works have included visual works created solely by computer algorithms to graphic novels combining human-generated text and machine-produced images. According to the Copyright Office, whether or not a work can receive copyright protection will depend on how the AI technology operates and how it was used to create the final work.
The notice states that "if a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the office will not register it,” the statement explained. “In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim.” Further, the notice states that users typically do not exercise ultimate creative control over how the systems interpret prompts and generate material. And without human control over a work’s “expressive elements,” a work is not copyrightable. “Instead, these prompts function more like instructions to a commissioned artist — they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output,” the copyright office explained.
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