Technology companies, researchers, content creators, and lawmakers will continue to grapple with the thorny copyright issues related to artificial intelligence (AI) and algorithmic outputs. In 2023, we expect to see continued litigation and policy discussions regarding the following topics.

•  Authorship of AI algorithm generated works. In 2022, the U.S. Copyright Review Board confirmed that copyright protection only extends to works of human authorship and rejected a copyright registration for an image created entirely by an AI. What has not been answered is how much a human can use AI tools in the creation of a work before that work will no longer be considered a work of a human author.
• Whether the outputs from certain deep learning AI systems can infringe copyrighted works. In the United States, copyright infringement occurs when anyone violates the exclusive rights of the copyright owner. Courts also require the infringement to result from the defendant’s “volitional conduct,” though courts differ in their interpretation of what that means. In 2023, we expect debate regarding whether infringement occurs where outputs of sophisticated deep learning AI systems are attenuated from anyone’s (i.e., a human’s) volitional act.
• Use of copyrighted works as training data for machine learning (ML). ML requires massive amounts of machine training data. Whether courts agree that the use of copyrighted materials as training data qualifies as fair use will be, as was the case with other disruptive technologies, critical to the future of AI innovation.

This post is a part of a series on trends in the artificial intelligence space for 2023, authored by MoFo lawyers.

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