A I., Art, and Copyright: The Human Element That Makes All the Difference Copyright

There is no such thing as an “international copyright” that will automatically protect an author’s works in countries around the world. Instead, copyright protection is territorial in nature, which means that copyright protection depends on the national laws where protection is sought. However, most countries are members of the Berne Convention and the TRIPS Agreement, which provide important protections for foreign authors. If content companies are forced to disclaim anything more than “de minimis” a copyright protects an AI content in their work, they will be left, at best, with nothing more than “thin” copyrights. For instance, they might try to show that the “selection, coordination, and arrangement” of non-copyrightable, AI-generated material is original enough to trigger copyrightability.

In addition to the Berne Convention, the GATT (General Agreement on Tariffs and Trade) treaty contains a number of provisions that affect copyright protection in signatory countries. Together, the Berne Copyright Convention and the GATT treaty allow U.S. authors to enforce their copyrights in most industrialized nations and allow the nationals of those nations to enforce their copyrights in the U.S. But even if the output is human-guided, you can still run into trouble if it’s too similar to the training data. That’s why some AI companies are putting filters in place to avoid spitting out song lyrics, paragraphs from books, or other copyrighted material.

Consulting a copyright lawyer can provide further insights into ensuring compliance and safeguarding one’s intellectual property. Nevertheless, important differences between the national regimes continue to exist. In the United States, for example, copyrights in works created by employees are commonly awarded to the employers under the “work-for-hire” doctrine, whereas in many other countries employees keep the copyrights in their creations.

Copyright law protects musical works and sound recordings the moment the artist fixes their creative work in a tangible format—for example, when a musical composition is notated in sheet music or a song is recorded in an audio file. That protection comes with exclusive rights giving copyright owners control over the use of their works, including the rights to publicly distribute and perform them, with public performances of sound recordings limited to digital audio transmissions. Anyone wishing to use the work in these ways must have the copyright owner’s permission, a licensing contract, or rely on a limitation or exception provided in the Copyright Act. Registering a musical work or sound recording with the Copyright Office is not required, but doing so provides additional benefits.

But this would be to expose themselves to individualized and subjective assessment of copyrightability at the Copyright Office and the courts. It would be a weak and uncertain defense against mass copying and distribution, far less protective than a simple copyright in the AI material itself. New tech companies seek to build their product on the backs of existing copyright owners, taking their work without permission or compensation.

Licensing and Permissions: The Safe Way to Use Copyrighted Works

Because the information is stored somewhere on an Internet server, it is fixed in a tangible medium and potentially qualifies for copyright protection. If you want to download the material for use in your own work, you should be cautious. Generally, you can claim a fair use right for using a very small portion of text for commentary, scholarship or similar purposes. Copyright is a legal concept that grants the creator of an original work exclusive rights to its use and distribution, typically for a limited time. This protection is automatically granted as soon as the work is created and fixed in a tangible medium, meaning it does not require formal registration to be effective. However, registering your copyright can provide additional legal benefits, such as the ability to seek statutory damages in court.

In this respect, the market for my work has not been harmed by Meta’s development of this new tool, and the world now has a useful new piece of technology. While the outcome is far from certain, it seems reasonably clear that the AI companies have the better case. Tech companies do make intermediate copies of works for the purpose of creating a new product, a large language model (LLM), that can be used to generate output of the same general kind as the works that were used as input. But, except in the rare case of output that is substantially similar to one of the input works, the outputs of these models do not compete with the specific works copied by putting in circulation exact duplicates of them. But—as with so much involving artificial intelligence (AI)—this time is different. Generative AI has the potential to significantly increase the productivity and quality of creative human labor.

Group Registration of Unpublished Works (GRUW)

To be eligible for protection under the Copyright Act, a work must be fixed in a “tangible medium of expression.” A literary work, for example, can be fixed in a book or on the back of an envelope. A work of visual art can be fixed on a canvas, and a sculptural work in stone. One unintended effect of denying copyright protection to AI works might be that content companies will have to maintain current levels of employment and compensation for today’s creative workers. If they cannot protect AI– generated works from mass copying, then these companies will not be able to use AI to generate the content they need.

Moreover, despite the Copyright Office’s view that prompts are “instructions that convey unprotectible ideas,” they seem to qualify as a work of authorship worthy of copyright in the same way that any original computer code would. It would be odd indeed for copyright to subsist in AI prompts while denying it for the content produced using AI prompts. In the United States, a copyright owner can significantly enhance the protection afforded by copyright. But there are some exceptions, like fair use, which allows limited use of copyrighted content without permission for things like commentary, criticism, teaching, or research.

What are the limitations of copyright protection?

Court of Appeals for the District of Columbia held that an AI model cannot be the author of a work for purposes of copyright. In addition, the Copyright Office has said, in the Allen case and in its report on copyrightability, that human authors cannot claim copyright protection for content they produce using AI models. If neither AI models nor human users of AI models can be authors of works for purposes of copyright, then these works are in the public domain. Closely related to this issue is the need to constrain AI output that resembles the voice or appearance of an individual.

SCHEDULE YOUR BUSINESS LEGAL AUDIT

The United States, the European Union, and a number of other countries have elected to do so. The determination of whether a use qualifies as fair use is based on several factors, including the purpose and character of the use, the nature of the copyrighted work, the amount of the work used, and the effect on the market for the original work. These rights allow the copyright holder to control how their work is used and to profit from its distribution and commercialization. For works published after 1977, the copyright lasts for the life of the author plus 70 years.

However, if the Copyright Office records later reveal the author’s identity, the ordinary terms of protection apply. The combination of rapid technological changes and the efforts of lawmakers to adapt to them has made copyright law far more controversial than it used to be. Widely publicized political and legal battles over the appropriate shape of this system of rules continued well into the 21st century. The issue gained a political footing after Sweden’s Pirate Party, which campaigned heavily on a platform of copyright and patent-law reform, secured a seat in the European Parliament.

Related Resources from the Copyright Office

They will have to continue to employ large numbers of experienced creative workers at good salaries to generate their content. It is true that AI models do not need copyright protection as an incentive to produce content because they are inert machines incapable of doing anything absent prompts from people seeking to create attractive content. For that reason, copyright should not treat AI models as the authors of works; rather, it should recognize the humans who use sequences of prompts to generate original content as the true authors.

AI-powered machines that will enable creators to generate high-quality content at dramatically lower costs are within reach. And because Visla combines AI automation with human creativity, letting users guide, edit, and refine every step of the way, you keep full control over your work. The end product reflects your intent and vision, and you can claim ownership of it. They say this is copying on a massive scale, often for commercial gain, without permission or payment.

What rights do you have as a copyright holder?

If content companies are forced to disclaim anything more than “de minimis” AI content in their work, they will be left, at best, with nothing more than “thin” copyrights.
For similar reasons, copyright does not protect facts — whether scientific, historical, biographical or news of the day.
It is true that AI models do not need copyright protection as an incentive to produce content because they are inert machines incapable of doing anything absent prompts from people seeking to create attractive content.

Copyright, the exclusive, legally secured right to reproduce, distribute, and perform a literary, musical, dramatic, or artistic work. For anonymous works or pseudonymous works (if the name of the author is not revealed), and for works made for hire, copyright lasts for 95 years from the date of first publication, or 120 years from the date of creation, whichever expires first. The copyright in joint works lasts for the life of the last surviving author plus 70 years. The international minimum standard for the protection of copyright, as set forth in the Berne Convention and the TRIPS Agreement, is the life of the author plus another 50 years.

In the long run, established content companies will want to use this technology themselves to generate high-quality content at a fraction of the current cost.
Published works are those that have been distributed to the public, such as through sale or exhibition.
In the United States, all books and other works, except for sound recordings, published before 1929 have expired copyrights and are in the public domain.
Copyright may also be licensed.90 Some jurisdictions may provide that certain classes of copyrighted works be made available under a prescribed statutory license (e.g. musical works in the United States used for radio broadcast or performance).

But even if the fair use defense fails and copyright owners want to assert their rights against AI companies, transparency measures might not be necessary. AI companies typically ingest everything they can get their hands on to train their models, so it would be reasonable for courts to adopt a rebuttable presumption that they copied specific works if these works were accessible online. As part of its copyright reform, Congress could adopt this rebuttable presumption of copying for AI training if a work appeared on the internet somewhere. An elaborate and expensive identification system might prove to be unnecessary for copyright owners to assert their rights. Copyright enforcement is easier when the plaintiff has registered the copyright shortly after its creation and when clear documentation of all other relevant information (i.e., a licensing agreement) exists. Willful infringement or an established profit motive can certainly damage a defendant in court, but neither must be proved to enforce a copyright.

There would be no infringement and therefore no need for required disclosures to allow owners to pursue their copyright infringement claims. AI companies and copyright owners would have wasted substantial time and resources creating useless transparency systems. Of course, a court could determine that AI models more generally harm the market for copyrighted works of the same general type as the works used to train them. If people can use AI models to write books, then an author might use AI to write a different book on regulating digital industries and it might be superior to mine and take some sales from me. Or my next book on AI ethics and policy might have to compete against an author who used AI to generate a book on the same topic. Because this use of AI models might diminish the market for my current book and my hypothetical next book, the court could conclude that the nonconsensual and uncompensated use of my existing, published work to create AI models is not fair use.