Overview
On August 30, 2023, the Copyright Office announced it would be seeking public comment on the use of copyrighted works to train Artificial Intelligence (“AI”), the copyrightability of AI outputs, whether AI-generated works infringe existing copyrights, and how to treat generative AI.
The Copyright Office noted that the rapid growth of AI systems—particularly the growth of generative AI—has raised issues about how copyright law might evolve. Because the Copyright Office views generative AI outputs, like songs, texts, audio, images, and art as works that would ordinarily be copyrightable if a human author created the work, it must confront whether generative AI can also create copyrightable materials.
The Copyright Office’s AI Initiative
This request for public comment is part of the Copyright Office’s overall AI Initiative, which was launched in March 2023 to examine copyright laws and AI policy issues, including issuing guidance about the registration of works generated, in whole or in part, by AI, hosting public listening sessions to invite feedback from a broad swath of subject matter experts, and holding meetings with stakeholders.
This request for comment is an important opportunity for people to inform the Copyright Office of critical copyright and AI issues and shape the Copyright Office’s AI Initiative, which in turn will inform future Copyright Office guidance, rules, and proposed legislation.
The Request for Comment
As the next step to the AI Initiative, the Copyright Office is soliciting formal comments. In particular, the Copyright Office is interested in questions about the potential benefits and risks of generative AI systems, how generative AI affects or will affect creators, copyright owners, technology developers, academics, researchers, or the public, and whether generative AI poses any unique, industry-specific concerns.
On top of seeking general comments about generative AI, the Copyright Office has identified four key issues for comment:
- The use of copyrighted works to train AI models;
- The copyrightability of material generated using AI systems;
- The potential liability for infringing works generated using AI systems; and
- The treatment of generative AI outputs that imitate the identity or style of human artists.
These broad questions implicate some of the major “hot-button” issues at the intersection of copyright law and AI, including whether the use of copyrighted works to train AI is fair use, whether copyright owners should be given an option to consent to the use of their works as training data, whether AI can be an “author,” and whether humans must disclose the use of AI in their registered works. The Copyright Office’s call for comments gives stakeholders the opportunity to weigh in on these issues.
Take Action: Companies working with AI or with copyrighted material should consider submitting a comment especially if they have particular industry concerns. The Copyright Office is seeking comments in two phases. The initial deadline to submit a comment is October 18, 2023, with a second deadline to provide written reply comments by November 15, 2023. For comments submitted during the initial phase, the reply comment period presents an opportunity for stakeholder to respond to, support, debate, or criticize those comments. Commenters who want to submit a comment but do not want their comment subject to public critic should submit their comment during the second phase.
To learn more about Crowell’s considerable experience at the intersection of copyright and AI, visit https://www.crowell.com/en/services/topics/artificial-intelligence-ai.
For further information, please contact:
Joachim B. Steinberg, Crowell & Moring
jsteinberg@crowell.com
