Artificial intelligence and copyright explained

In the 2020s, the rapid advancement of deep learning-based generative artificial intelligence models are raising questions about whether copyright infringement occurs when the generative AI is trained or used. This includes text-to-image models such as Stable Diffusion and large language models such as ChatGPT. As of 2023, there are several pending U.S. lawsuits challenging the use of copyrighted data to train AI models, with defendants arguing that this falls under fair use.[1]

Popular deep learning models are trained on mass amounts of media scraped from the Internet, often utilizing copyrighted material.[2] When assembling training data, the sourcing of copyrighted works may infringe on the copyright holder's exclusive right to control reproduction, unless covered by exceptions in relevant copyright laws. Additionally, using a model's outputs might violate copyright, and the model creator could be accused of vicarious liability and held responsible for that copyright infringement.

Copyright status of AI-generated works

Since most legal jurisdictions only grant copyright to original works of authorship by human authors, the definition of "originality" is central to the copyright status of AI-generated works.[3]

United States

In the U.S., the Copyright Act protects "original works of authorship". The U.S. Copyright Office has interpreted this as being limited to works "created by a human being", declining to grant copyright to works generated without human intervention. Some have suggested that certain AI generations might be copyrightable in the U.S. and similar jurisdictions if it can be shown that the human who ran the AI program exercised sufficient originality in selecting the inputs to the AI or editing the AI's output.

Proponents of this view suggest that an AI model may be viewed as merely a tool (akin to a pen or a camera) used by its human operator to express their creative vision. For example, proponents argue that if the standard of originality can be satisfied by an artist clicking the shutter button on a camera, then perhaps artists using generative AI should get similar deference, especially if they go through multiple rounds of revision to refine their prompts to the AI.[4] Other proponents argue that the Copyright Office is not taking a technology neutral approach to the use of AI or algorithmic tools. For other creative expressions (music, photography, writing) the test is effectively whether there is de minimis, or limited human creativity. For works using AI tools, the Copyright Office has made the test a different one i.e. whether there is no more than de minimis technological involvement.[5]

This difference in approach can be seen in the recent decision in respect of a registration claim by Jason Matthew Allen for his work Théâtre D'opéra Spatial created using Midjourney and an upscaling tool. The Copyright Office stated:

The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence ("AI"), and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted.[6]
As AI is increasingly used to generate literature, music, and other forms of art, the U.S. Copyright Office has released new guidance emphasizing whether works, including materials generated by artificial intelligence, exhibit a 'mechanical reproduction' nature or are the 'manifestation of the author's own creative conception'.[7] The U.S. Copyright Office published a Rule in March 2023 on a range of issues related to the use of AI, where they stated:

...because the Office receives roughly half a million applications for registration each year, it sees new trends in registration activity that may require modifying or expanding the information required to be disclosed on an application.

One such recent development is the use of sophisticated artificial intelligence ("AI") technologies capable of producing expressive material. These technologies "train" on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user's textual instruction, called a "prompt." 

The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as "generative AI," raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them.[8]

The U.S. Patent and Trademark Office (USPTO) similarly codified restrictions on the patentability of patents credits solely to AI authors in February 2024, following an August 2023 ruling in the case Thaler v. Perlmutter. In this case, the Patent Office denied grant to patents created by Stephen Thaler's AI program, DABUS due to the lack of a "natural person" on the patents' authorship. The U.S. Court of Appeals for the Federal Circuit upheld this decision.[9] In the subsequent rule-making, the USPTO allows for human inventors to incorporate the output of artificial intelligence, as long as this method is appropriately documented in the patent application.[10] However, it may become virtually impossible as when the inner workings and the use of AI in inventive transactions are not adequately understood or are largely unknown.[11]

Representative Adam Schiff proposed the Generative AI Copyright Disclosure Act in April 2024. If passed, the bill would require AI companies to submit copyrighted works to the Register of Copyrights before releasing new generative AI systems. These companies would have to file these documents 30 days before publicly showing their AI tools.[12]

United Kingdom

Other jurisdictions include explicit statutory language related to computer-generated works, including the United Kingdom's Copyright, Designs and Patents Act 1988, which states:

In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

However, the computer generated work law under UK law relates to autonomous creations by computer programs. Individuals using AI tools will usually be the authors of the works assuming they meet the minimum requirements for copyright work. The language used for computer generated work relates, in respect of AI, to the ability of the human programmers to have copyright in the autonomous productions of the AI tools (i.e. where there is no direct human input):

In so far as each composite frame is a computer generated work then the arrangements necessary for the creation of the work were undertaken by Mr Jones because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer program. In these circumstances I am satisfied that Mr Jones is the person by whom the arrangements necessary for the creation of the works were undertaken and therefore is deemed to be the author by virtue of s.9(3)[13]

Notes and References

  1. Web site: Artificial Intelligence Copyright Challenges in US Courts Surge . 2024-03-19 . www.natlawreview.com . en.
  2. Web site: Primer: Training AI Models with Copyrighted Work . 2024-03-19 . AAF . en-US.
  3. Web site: What is the Copyright Status of AI Generated Works? . 2024-03-19 . www.linkedin.com . en.
  4. News: Popular A.I. services for creating images are legal minefields for artists seeking payment for their work . 21 June 2023 . Fortune . 2023 . en.
  5. Peter Pink-Howitt, Copyright, AI And Generative Art, Ramparts, 2023.
  6. Second Request for Reconsideration for Refusal to Register Théâtre D'opéra Spatial (SR # 1-11743923581; Correspondence ID: 1-5T5320R, 2023).
  7. Web site: Federal Register :: Request Access . 2024-03-20 . unblock.federalregister.gov.
  8. https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence
  9. Web site: 'Thaler v. Perlmutter': AI Output is Not Copyrightable . 2023-12-01 . New York Law Journal . en.
  10. Web site: USPTO says AI models can't hold patents . 14 February 2024 .
  11. Valinasab, Omid, "Big Data Analytics to Automate PatentDisclosure of Artificial Intelligence’s Inventions." U.S.F. Intell. Prop. & Tech. L.J. 133 (2023).
  12. Web site: New bill would force AI companies to reveal use of copyrighted art . 2024-04-13 . amp.theguardian.com.
  13. https://www.gov.uk/guidance/the-governments-code-of-practice-on-copyright-and-ai The UK government's code of practice on copyright and AI.
  14. https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyright-and-patents/outcome/artificial-intelligence-and-intellectual-property-copyright-and-patents-government-response-to-consultation Artificial Intelligence and Intellectual Property: copyright and patents: Government response to consultation
  15. https://www.govinfo.gov/content/pkg/FR-2023-08-30/pdf/2023-18624.pdf
  16. Web site: Aaron Wininger. Beijing Internet Court Recognizes Copyright in AI-Generated Images. The National Law Review. 2023-11-29.
  17. Web site: Takyar . Akash . 2023-11-07 . Model validation techniques in machine learning . 2024-03-20 . LeewayHertz - AI Development Company . en-US.
  18. Web site: Vincent . James . 2022-11-15 . The scary truth about AI copyright is nobody knows what will happen next . 2024-03-20 . The Verge . en.
  19. Web site: Lee . Timothy B. . 2023-04-03 . Stable Diffusion copyright lawsuits could be a legal earthquake for AI . 2024-03-20 . Ars Technica . en-us.
  20. Web site: Lee . Timothy B. . 2023-04-03 . Stable Diffusion copyright lawsuits could be a legal earthquake for AI . 2024-03-20 . Ars Technica . en-us.
  21. Lemley . Mark A. . Casey . Bryan . 2020 . Fair Learning . SSRN Electronic Journal . 10.2139/ssrn.3528447 . 1556-5068.
  22. Web site: Artificial Intelligence and Intellectual Property: copyright and patents: Government response to consultation . 2024-03-20 . GOV.UK . en.
  23. Book: Mitsunaga, Takuho . Heuristic Analysis for Security, Privacy and Bias of Text Generative AI: GhatGPT-3.5 case as of June 2023 . 2023-10-09 . 301–305 . 2023 IEEE International Conference on Computing (ICOCO) . http://dx.doi.org/10.1109/icoco59262.2023.10397858 . IEEE . 10.1109/icoco59262.2023.10397858. 979-8-3503-0268-4 .
  24. News: Brittain . Blake . 2023-07-19 . US judge finds flaws in artists' lawsuit against AI companies . en . Reuters . 2023-08-06.
  25. Web site: Artists Lose First Round of Copyright Infringement Case Against AI Art Generators . Winston . Cho . October 30, 2023 . April 30, 2024 . .
  26. Web site: Artists’ lawsuit against Stability AI and Midjourney gets more punch . Adi . Robertson . August 13, 2024 . August 13, 2024 . .
  27. Web site: The copyright battles against OpenAI have begun . 6 July 2023 .
  28. Web site: Kris . Jimmy . 2023-07-06 . OpenAI faces copyright lawsuit from authors Mona Awad and Paul Tremblay . 2023-07-10 . DailyAi . en.
  29. Web site: Sarah Silverman is suing OpenAI and Meta for copyright infringement . Wes . Davis . July 9, 2023 . April 30, 2024 . .
  30. Web site: Sarah Silverman’s lawsuit against OpenAI partially dismissed . Emilla . David . February 13, 2024 . April 30, 2024 . .
  31. News: New York Times and authors on ‘fair use’ of copyrighted works . Matt . O'Brien . January 10, 2024 . April 30, 2024 . .
  32. News: Eight newspapers sue OpenAI, Microsoft for copyright infringement . Bobby . Allyn . April 30, 2024 . April 30, 2024 . .
  33. Web site: Major record labels sue AI company behind ‘BBL Drizzy’ . Mia . Sato . June 24, 2024 . June 24, 2024 . .
  34. https://www.casemine.com/judgement/uk/5a8ff74360d03e7f57eaa95f Nova Production v MazoomaGames [2006<nowiki>] EWHC 24 (Ch)].

The UK government has consulted on the use of generative tools and AI in respect of intellectual property leading to a proposed specialist Code of Practice:[13] "to provide guidance to support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections on generated output to support right holders of copyrighted work".[14] The U.S. Copyright Office recently published a notice of inquiry and request for comments following its 2023 Registration Guidance.[15]

China

On November 27, 2023, the Beijing Internet Court issued a decision recognizing copyright in AI-generated images in a litigation.[16]

As noted by a lawyer and AI art creator, the challenge for intellectual property regulators, legislators and the courts is how to protect human creativity in a technologically neutral fashion whilst considering the risks of automated AI factories. AI tools have the ability to autonomously create a range of material that is potentially subject to copyright (music, blogs, poetry, images, and technical papers) or other intellectual property rights (patents and design rights).

Training AI with copyrighted data

Deep learning models source large data sets from the Internet such as publicly available images and the text of web pages. The text and images are then converted into numeric formats the AI can analyze. A deep learning model identifies patterns linking the encoded text and image data and learns which text concepts correspond to elements in images. Through repetitive testing, the model refines its accuracy by matching images to text descriptions. The trained model undergoes validation to evaluate its skill in generating or manipulating new images using only the text prompts provided after the training process.[17] Because assembling these training datasets involves making copies of copyrighted works, this has raised the question of whether this process infringes the copyright holder's exclusive right to make reproductions of their works.

U.S. machine learning developers have traditionally believed this to be allowable under fair use because using copyrighted work is transformative, and limited.[18] The situation has been compared to Google Books's scanning of copyrighted books in Authors Guild, Inc. v. Google, Inc., which was ultimately found to be fair use, because the scanned content was not made publicly available, and the use was non-expressive.[19]

Timothy B. Lee, in Ars Technica, argues that if the plaintiffs succeed, this may shift the balance of power in favour of large corporations such as Google, Microsoft, and Meta which can afford to license large amounts of training data from copyright holders and leverage their proprietary datasets of user-generated data.[20] IP scholars Bryan Casey and Mark Lemley argue in the Texas Law Review that datasets are so large that "there is no plausible option simply to license all [of the data...]. So allowing [any generative training] copyright claim is tantamount to saying, not that copyright owners will get paid, but that the use won't be permitted at all."[21] Other scholars disagree; some predict a similar outcome to the U.S. music licensing procedures.

Several jurisdictions have explicitly incorporated exceptions allowing for "text and data mining" (TDM) in their copyright statutes including the United Kingdom, Germany, Japan, and the EU. Unlike the EU, the United Kingdom prohibits data mining for commercial purposes but has proposed this should be changed to support the development of AI: "For text and data mining, we plan to introduce a new copyright and database exception which allows TDM for any purpose. Rights holders will still have safeguards to protect their content, including a requirement for lawful access."[22] As of June 2023, a clause in the draft EU AI Act would require generative AI to "make available summaries of the copyrighted material that was used to train their systems".[23]

Copyright infringing AI outputs

In some cases, deep learning models may "memorize" specific details of items in their training set, and replicate them when generating new content, such that the outputs may be considered copyright infringement. This behaviour is generally considered a form of overfitting by AI developers and it is uncertain how prevalent this behaviour is in current systems.

OpenAI argued that "well-constructed AI systems generally do not regenerate, in any nontrivial portion, unaltered data from any particular work in their training corpus". Under U.S. law, to prove that an AI output infringes a copyright, a plaintiff must show the copyrighted work was "actually copied", meaning that the AI generates output which is "substantially similar" to their work, and that the AI had access to their work.

In the course of learning to statistically model the data on which they are trained, deep generative AI models may learn to imitate the distinct style of particular authors in the training set. Since fictional characters enjoy some copyright protection in the U.S. and other jurisdictions, an AI may also produce infringing content in the form of novel works which incorporate fictional characters.

A generative image model such as Stable Diffusion is able to model the stylistic characteristics of an artist like Pablo Picasso (including his particular brush strokes, use of colour, perspective, and so on), and a user can engineer a prompt such as "an astronaut riding a horse, by Picasso" to cause the model to generate a novel image applying the artist's style to an arbitrary subject. However, an artist's overall style is generally not subject to copyright protection.

Litigation

External links

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