House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet’s hearing “Artificial Intelligence and Intellectual Property: Part III – IP Protection for AI-Assisted Inventions and Creative Works.”

ABSTRACT:

This testimony discusses how copyright should be applied to works created with the aid of Generative Artificial Intelligence (GAI). When determining whether to register claims of copyright for creative works made by humans with the use of GAI we should begin by looking to the acts of the human creator not at the outputs of the GAI. If a human has met the minimal creativity requirements set out by the Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., then the question is whether the interaction with the GAI undermines a claim to human authorship or merely extends an authentic human vision for a work. Applying this approach, at least some creative works authored by humans using the assistance of GAI will be protectable by copyright.

In Feist, the Supreme Court called originality “the touchstone” of copyright and distinguished creative acts from mere sweat-of-the-brow effort. However, the Court did not set a particularly high bar, requiring only that authors demonstrate a minimal level of creativity. The Court also stated that “[t]he mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.” This means that determining originality must turn on the creative acts of the author—in the context of AI assisted creative works, the question is what creative acts has the human author taken? More specifically, the proper inquiry is whether the human author has used GAI as an artist uses any other tool or material to bring their creative vision to life or has the use of GAI served to substitute for the artist’s own creativity. Put another way, has the artist deployed GAI or engaged it authentically and in their own voice—in a manner that demonstrates the artist is staying true to their creative vision? The full testimony explores this question in greater depth.

Further, while liability for training of GAIs must be resolved, denying humans IP protection to otherwise protectable works that use GAIs is counterproductive. It will relegate legitimate human works to the category of synthetic data. Additionally, denying copyright to humans who create works with the assistance of GAIs if the work is otherwise sufficiently original to qualify for protection will do nothing to instill respect for IP rights in those who develop and train GAIs. To the contrary, doing so will merely disenfranchise creative workers from being able to claim copyright in expressive works based on the media/tools they choose to work with—relegating their works to the category of synthetic data and foreclosing to these human artists the opportunity to control or be compensated for use of their works. Such works would then immediately become available for GAI training without the need for any permissions from the human creator who used the GAI to make the creative work. This would exploit creative workers on both the input side (by not protecting copyright in the initial materials the GAI is trained on) and on the output side (by not protecting copyright in the expressive works created by humans using the GAI in their authorship).

Finally, the Copyright Office currently requires authors to “disclose and disclaim” more than de minimis use of GAI in creative works. This approach causes problems for creators because it requires the creator to exercise control and foreseeability over a device they have not manufactured, trained or deployed into the marketplace. Instead, the relevant inquiry should be whether the creator is executing their own intellectual conceptions.