US Copyright Office issues guidance on the protection of AI-generated works

 

On 16 March 2023, the US Copyright Office (USCO) published the “Copyright registration guide: works containing material generated by artificial intelligence”.

This is a short guide containing a “statement of policy” aimed at clarifying the position of the USCO regarding the examination and registration of works whose creation implies Artificial Intelligence (AI). This publication is a follow up to the several applications for registration of works generated by or through AI as well as a recent decision of the USCO itself concerning the “Zarya of the Dawn”, where some part of the works were generated by Midjourney (see IPKat here).

                                   

The USCO underlines “human authorship” requirement and explains that “the office will consider whether the AI contributions are a result of the mechanical reproduction or instead of an author’s own original mental conception, to which [the author] gave visible form. The answer will depend on circumstances, particularly on how the AI tool operates and how it was used to create the final work”. 

In line with this, the USCO distinguished the following situations:

 

i) The author gives simple instructions to AI. In this case “the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology -not the human user. In this case “users do not exercise ultimate creative control over how such systems interpret prompts and generate material”.

 

ii) AI generated works are (re)elaborated by the author. In such cases, “a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that the resulting work constitutes an original work of authorship. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of ” and do “not affect” the copyright status of the AI-generated material itself”.

 

The USCO then specifies that the above distinction does not prevent technological tools from being part of the creative process, as authors have long used such tools to create their works or to recast, transform or adapt their expressive authorship.

 

The above principles are in line with the USCO’s Compendium of Practices and with another previous decision of the USCO dated 14 February 2022 (commented by IPKat here).

Finally, the USCO provides a guidance for applicants, who bear the duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contribution to the work.

Picture courtesy of Elisa & Otto from Italy.