The United States Copyright Office has determined that Artificial Intelligence (AI) generated outputs that reflect “sufficient human contribution” warrant copyright protection, in a report on copyright and AI released this month. However the agency also clarified that prompts alone don’t satisfy those requirements.
The US Copyright Office noted that the use of technology in production of creative works was not new and that AI was simply the latest technology on the block. It stated that the use of AI as an assistive tool or the incorporation of AI generated works could not be grounds to preclude a work of art from copyright. However, the capabilities of advanced generative AI models merited a discussion on the nature of human authorship, especially as AI models could create artworks that closely resembled existing copyrighted work. Should these be copyrighted too?
The report took a historical perspective on the issue, going back to similar debates in the 1960s that deliberated on whether material created using technology is “‘written’ by computers” or authored by human creators. The office took the position then that a work’s copyrightable status would depend on whether the computer was only an “assisting instrument” or if it had “conceived and executed” the “traditional elements of authorship” in the work. Since the answer depended on the circumstances surrounding the creation of the work, the office decided not to deny copyright merely because a computer was present in the creation of the work. The same logic applies to AI generated creative work.
“Where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. At the other extreme, if content is entirely generated by AI, it cannot be protected by copyright,” said the report.
Are Prompts Enough For Copyright?
According to the Copyright Office, prompts essentially function as instructions that convey unprotectable ideas. This applies to highly detailed prompts as well, as at present they
do not control how the AI system processes them in generating the output. The logic present is the same that courts applied to cases of join ownership. As an example, if you hire somebody to create a work of art and provide them with instructions, you do not automatically own the work’s copyright just because you do it.
“The evidence as to the operation of today’s AI systems indicates that this is not
currently the case. Prompts do not appear to adequately determine the expressive elements
produced, or control how the system translates them into an output,” said the report. The Office further observed that while prompts may reflect a user’s mental conception or idea, they do not control the actual expression of the idea. The fact that identical prompts can produce different results on multiple attempts is proof of the above.
What About Human Created Inputs?
The report also deliberated on what happens when a human user creates a copyrightable work on their own and then provides it to the AI as part of their prompt. Many AI applications allow users to add documents or images to their prompts for the AI to use as reference material.
The Copyright Office declared that in such situations, where a human inputs their own copyrightable work and that work is perceptible in the output, their copyright claim would apply only to their own work. Just like copyright protection for derivative art, limited to the material added by the later author, copyright protection for AI art would include only the user’s copyrightable inputs.
What About Editing or Arranging AI-Generated Content?
The report noted that the Office had received many copyright applications for works that involved editing AI generated content or arranging them into larger works of art. An example of this would be a comic book that combined human authored text with AI generated images. The Office accepted this application, arguing that the selection of the images, alongside the human-authored text and their arrangement demonstrated creative choice.
Many AI tools allow users to edit or combine AI generated images. Whether these modifications would sufficiently qualify for copyright protection would vary case to case. Further, the report also noted that works which include AI generated material as part of a larger whole are still copyrightable. An example would be a movie which includes AI generated special effects. The movie as a whole is copyrightable, even though the AI generated images specifically may not be.
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