Artificial Intelligence Generated Work – Copyright Protection and Infringement

As artificial intelligence (AI) continues to develop, it’s becoming increasingly capable of creating works indistinguishable from those created by humans, which raises intriguing questions about intellectual property rights. One such area of concern is what can be copyright-protected in a work generated by AI. Another area is the potential for infringement of copyrights by AI systems. As AI technologies evolve, it becomes crucial to understand the nuances of copyright protection and infringement in the context of AI-generated works.

Copyright Law Basics

In general, copyright law protects original works of authorship fixed in any tangible medium of expression, regardless of how those works are created. Creators are granted exclusive rights to their original works, typically the work’s reproduction, distribution, and public display. Copyright protection does not extend to ideas or facts; instead, it safeguards the expression of those ideas in a tangible form. There are exceptions. It has long been the position of the U.S. Copyright Office that there is no copyright protection for works created by non-humans, including machines or other automated means. 

Copyright Protection for AI-generated Work

In a recent policy statement issued in March 2023, the U.S. Copyright Office guided creators working with AI tools on registering their works. The policy statement notes that only human-made creations are eligible for copyright protection. 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. Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, according to the Copyright Office, copyright will only protect aspects of the work made by the authoring human, i.e., resulting in partial protection of entire works. 

It is important to note that the law on copyright protection for AI-generated content is still evolving. As AI technology develops, copyright law will likely need to be updated to reflect the new realities of AI-generated content. Several cases are winding through the courts regarding copyright protection for works created with AI. Eventually, these court decisions will develop new rules for determining what can be copyright-protected when AI is involved in the creative process.

If you’re creating work generated with AI, here are some things to consider:

  • The level of human input into the creation of the AI-generated work. The more human input there is, the more likely the work will be eligible for copyright protection.
  • The originality of the AI-generated work. The more original the work is, the more likely it is to be eligible for copyright protection.
  • The purpose of the AI-generated work. If the work is created for commercial purposes, it may be more likely to be eligible for copyright protection.
  • Who owns the work. If a work is found to be eligible for copyright protection, the copyright will belong to the person who created the work or to the person who commissioned the work if it was created for hire.

Copyright Infringement by AI Systems

On the flip side of the copyright coin is the potential for AI-generated work to infringe the copyright-protected work of others. AI-generate work will infringe if it had access to the copyright-protected work (i.e., it copied the underlying work in question) and created substantially similar outputs. For AI programs, access might be shown by evidence that the AI program was trained using the underlying copyright-protected work. For instance, the underlying work might be part of a publicly accessible internet site that was downloaded or “scraped” to train the AI program.

Second, a plaintiff must prove the new work is substantially similar to the underlying work to establish infringement. The substantial similarity test is challenging to define and varies across U.S. courts. It might be considered substantially similar if there is a total concept and feel, or overall look and feel, that is similar. Or if an ordinary reasonable person would fail to differentiate between the two works, then substantial similarity exists.

As expected, several cases regarding copyright infringement by AI systems are currently pending. One high-profile case is the New York Times vs. Microsoft, Open AI, in which NYT alleges that OpenAI and Microsoft unlawfully engaged in widescale copying of millions of copyrighted news articles, investigations, opinion pieces, and more to create artificial intelligence products, all without permission or payment. OpenAI and Microsoft argue their use falls under fair use because the unlicensed use of copyright material to train generative AI models is a “transformative use” that changes the original material. NYT is among several copyright owners that have sued tech companies for allegedly misusing their work in AI training, including groups of authors, visual artists, and music publishers. 

The intersection of AI and copyright law presents a complex and evolving landscape. As AI technology advances, legal systems will likely face new challenges in defining authorship, originality, and infringement in the context of AI-generated literary works. Establishing a balance that protects human authors’ rights and encourages innovation in AI is crucial for navigating this uncharted territory. As we progress, policymakers, legal experts, and the tech industry must collaborate to develop clear guidelines that ensure fair treatment and protection for all stakeholders involved in the creative process.

Photo Credit: Mohammad Usman | Pixabay

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

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