On August 30, 2023, the U.S. Copyright Office released a Notice of Inquiry (NOI) seeking comment on the copyright law and policy issues implicated by artificial intelligence (AI) systems. Businesses whose content or publications may be used by AI systems as well as businesses that develop or deploy AI systems, particularly those involving generative AI, should consider responding to the NOI. The comments could influence the direction of future AI and copyright policy and regulation, and comments are due Wednesday, October 18, 2023.

The NOI comes alongside other federal efforts to address AI, such as the White House’s Blueprint for an AI Bill of Rights, the Department of Defense’s (DoD) consideration of Bills of Materials for AI products, the National Institute of Science and Technology’s (NIST) AI Risk Management Framework (AI RMF), the Federal Trade Commission’s (FTC) consideration of potential privacy rules, and the National Telecommunications and Information Administration’s (NTIA) AI Accountability study.

In light of the rapid advancement of AI systems and technologies within the last year, the Copyright Office is seeking a better understanding of the issues at the intersection of generative AI—that is, “technology capable of producing outputs such as text, images, video, or audio (including emulating a human voice)”—and copyright protections. This NOI is the latest initiative related to the Copyright Office’s involvement with generative AI.

As previously discussed, this area of law and policy remains unsettled, and copyright and AI issues are only just beginning to wind their way through federal courts. In the NOI, the Copyright Office requests comments on four main areas: the use of copyrighted works to train AI systems; the potential liability for AI-generated works that infringe on existing copyrights; the extent to which material generated using AI systems can be copyrighted; and how to treat generative AI outputs that imitate the identity or style of human artists.

Key Takeaways

• Copyright Office Considering Whether to License Copyrighted Works to Train AI Models. The Copyright Office seeks comment on how datasets are used to train AI models, the sourcing of materials incorporated into the corpora of AI systems, and whether/how copyright owners should be compensated when their works are included in an AI system’s corpus. The NOI discusses several possible licensing solutions to address compensation when an AI-generated work is found to infringe on an existing copyright.
• Possible Generative AI Labeling Requirements on the Horizon. The Copyright Office seeks input on whether to adopt rules that require AI-generated works to be labeled/publicly identified as being generated by AI. Although there currently are no rulemakings underway to adopt labeling requirements, companies should consider the prospect of labeling requirements when assessing whether to integrate generative AI into their business models.
• The Amount of Human Input Required to Trigger Copyright Protections Remains Unclear. The Copyright Office acknowledges that there is still considerable uncertainty about the amount of human control required to entitle a work to copyright protection and asks whether, for example, selecting the data used in a corpus is sufficient to claim authorship of the resulting output. It also goes one step further, seeking comment from the public as to whether AI-generated works should be copyrightable, and, if so, whether such works would be covered under U.S. copyright law or a separate sui generis
• Legality of Using Generative AI to Imitate/Use the Likenesses of Artists is Murky. Using AI to mimic voices and faces of famous performers has been one of the biggest points of contention during the Screen Actors Guild-American Federation of Television and Radio Artists (SAG/AFTRA) strike due to fears that studios and record labels will use AI-generated copies in lieu of hiring and paying performers. In a timely response to this newsworthy issue, the Copyright Office notes that although personal attributes are not generally protected by copyright laws, using an artist’s likeness may implicate other areas of law such as state rights of publicity, unfair competition laws, and international treaty obligations. The Copyright Office thus seeks comment on the types of legal protection that may be implicated by using AI in this manner.

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