US Copyright Office Generative AI Event: Three Key Aspects

“There is a need for guidance and insight when it comes to the use of AI and ML technologies, including generative AI technologies, as evidenced by the 150+ audience questions received during the live stream. The Office also noted that 1,500 people attended the virtual meeting.

One of several fictitious examples provided by USCO to demonstrate how to apply for registration of works created with the help of AI. Pictured: Rob Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice.

On Wednesday, June 28, the United States Copyright Office (USCO) hosted a virtual event exploring guidance for registering works containing Generative Artificial Intelligence (AI) content. The one-hour event included a recap of previously released USCOs political orientation and the Zarya of the Dawn partial refusal of registration, staff go through numerous examples of how artificial intelligence technologies are being used and a question and answer session consisting of pre-scheduled and live audience discussions.

Here are three highlights from the event.

Application feist at Works

In determining whether or not a work has sufficient human authorship, USCO took home reliance on the US Supreme Court’s decision in Feist versus Rural Telephonewho established the de minimis test for human paternity. As a constitutional issue, the Court observed, copyright protects only those constituent elements of a work which possess more than a de minimis quantum of creativity.

Works that contain no or only a minimal amount of original expression are not subject to copyright and cannot be registered with the US Copyright Office, USCO also advises in Section 313.4(B) of the Compendium of US Copyright Office Practices , Third Edition, (Compendium).

On March 16, USCO released Guide to Copyright Registration: Works Containing Artificial Intelligence-Generated Material to clarify its practices for reviewing copyright registration applications for works that include, in whole or in part, works generated by artificial intelligence of artificial intelligence. The policy guidelines continue to build on previously established legal principles and impose obligations on applicants to declare AI-generated content that is more than de minimis must be explicitly excluded from the application.

During the event, USCO’s Deputy Director of Registration Policy, Erik Bertin explained that the focus of applicants should be on the distinction between appreciable content and de minimis content. Bertin noted that disclosure is necessary for AI-generated content that does not cross the de minimis theshold.

Based on some of the examples given, it would appear that USCO would allow the recording of an audio recording released by The Beatles that uses AI-powered mastering techniques. However, the AI-generated portions of the TV opening credits would require some level of opt-out at the time of recording.

Interestingly, USCO has been discussing using generative AI to translate a work into a different language. They noted that copyright protections would not extend to translation; however, an author should still register the work in its original language to offer protections that extend to unauthorized uses of subsequent translations.

A number of comments received by the Office focused on the question of whether suggestions used in relation to generative AI tools are copyrightable. Rob Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, shared that USCO is not yet aware of any prompt registrations. He added that they don’t prohibit anyone from submitting an application, so it’s technically possible.

Bertin added that if a prompt has sufficiently protectable text or image content, it may be recordable. But you clarified that logging does not necessarily extend protection to output or other similar prompts or outputs.

When in doubt, disclose

USCO explained that disclosure of materials created by nonhumans is not a new requirement. Disclosures have always been required if the work contains unclaimable material, they explained in a slide, noting the requirements for denying previously posted material, previously recorded material, public domain material and copyrighted material owned by another party. .

Several times during the event, USCO reiterated that registration applications must not include nuanced details about where and how AI tools have been used. An annotated slide. Usually it is sufficient to check a box or provide a brief general statement. They also noted that excluded material should not be removed from storage.

It is important to remember that excluded materials are not protectable. The updated policy guidance and additional examples shared at the event do not change USCO’s previous decision that generative works are not subject to copyright protection and therefore would be considered public domain materials.

Remember March 16th

During the question and answer session, a question planned by USCO centered around the issue of an applicant not properly disclosing the use of AI. As previously reported on IPWatchdog, filing an application to register with USCO is subject to fines under 17 USC 506(e) for anyone who knowingly makes a false representation of a material fact.

Copyright office

One of several fictitious examples provided by USCO to demonstrate how to apply for registration of works created with the help of AI.

In its response at the event, USCO appeared to acknowledge the impact such a violation would have on applicants. They acknowledged that registration applications filed before the March 16 policy will not be held to the higher standard to which registration applications after March 16 would be subject. This appears to be a direct reference to section 4 of the policy guide.

Applicants who do not update the public registry after obtaining a registration for AI-generated material risk losing the benefits of the registration, the USCO notes in written policy guidance.

During the live stream, USCO referred to the impact erroneous applications and subsequent filings could have on litigation. Ultimately, the applicant’s failure to disclose within an application (or correct a previously issued registration) could allow a court to disregard a registration.

Other questions the Office took up included whether USCO was actively going back to previous registrations in which AI played a role in initiating deletions. Office representatives confirmed that they generally are not, and will refer contested registrations to the courts. The Office also does not require applicants to submit a supplementary registration for such works, stating that this is a decision for the applicant. Those wishing to update pending registrations based on the new guidance should contact USCO’s public information office, which will help clarify the scope of the complaint.

Looking forward

USCO noted that it cannot wait for the courts to comment on these issues and that the perpetrators and plaintiffs are awaiting decisions. Meanwhile, USCO remains in a legal battle with Dr. Stephen Thaler over his refusal to register a generative work that, based on USCO’s most recent guidance, would fail to pass the de minimis paternity threshold.

There is a need for guidance and insight when it comes to the use of AI and ML technologies, including generative AI technologies, as evidenced by the 150+ audience questions received during the live stream. The Office also noted that 1,500 people attended the virtual meeting. While the event focused solely on logging and securing the output of Generative AI tools, it’s important to remember that there are additional issues along the entire Generative AI lifecycle.

Following the event, USCO announced its next public webinar, International Copyright Issues and Artificial Intelligence, scheduled for July 26, 2023. Discussion will cover not only authorship, but also formation and infringement. In addition, the event will be attended by leading international experts, including Jane Ginsburg of Columbia Law Schools, Andres Guadamuz of the University of Sussex, Bernt Hugenholtz of the University of Amsterdam, Luca Schirru of KU Leuvens and Raquel Xalabarder Plantada of the University Oberta de Catalunyas.

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Image Source : ipwatchdog.com

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