On August 30, 2023, the U.S. Copyright Office published a Notice of inquiry and request for comment in the Federal Register (the "Notice"), seeking input from the public on various copyright law and policy issues relating to generative artificial intelligence. Written comments are due to the Copyright Office by October 18, 2023, while written replies are due no later than November 15, 2023.

According to the Notice, the widespread adoption and use of generative AI technologies – tools that produce text, images, videos, and audio – have raised a number of pressing questions about the future of creative rights, content creation and use, and the copyright system more generally. In recent years, content creators have begun to submit applications to register works containing varying degrees of AI-generated materials, while copyright owners have brought infringement lawsuits against companies that are developing or utilizing generative AI based on the training process for, and outputs derived from, generative AI systems. You can read more about some of these issues and lawsuits here and here. Based on information the Copyright Office receives in response to the Notice, it intends to advise Congress by offering a summary of the current state of the law, identifying unresolved legal and policy issues, and evaluating whether new legislation is warranted.

As part of its Notice, the Copyright Office seeks public comment on four general topics:

  • The Use of Copyrighted Works to Train AI Models: This category includes questions on whether permission by and/or compensation for copyright owners is or should be required when their works are included in AI datasets for training AI models; what kinds of payment systems are feasible and effective for works included in AI training models; and what obligations, if any, should there be to notify copyright owners that their works have been used to train AI models.
  • The Copyrightability of Material Generated Using AI Systems: Discussion points in this category include how to draw the line between human creation and AI-generated content for the purposes of gaining copyright protection given the Office's decision that a work generated entirely by AI with no human input is not copyrightable; what if any circumstances are there where a human using a generative AI system should be considered the author of the material created; and whether the Copyright Clause in the U.S. Constitution warrants copyright protection for AI-generated materials.
  • The Potential Liability for Infringing Works Using AI Systems: Pending areas of discussion include whether the substantial similarity test is adequate to address claims of infringement based on outputs from a generative AI system; how copyright owners can prove the elements of copying if AI model developers do not keep records of what training materials they use; and how AI-generated outputs implicate the rights of preexisting copyrighted works, such as the right of reproduction or derivative works.
  • The Treatment of Generative AI Outputs that Imitate Human Artists: Open questions include whether there should be protections against prompts for generative AI outputs in the style of a human creator; how legal rights currently apply to AI-generated material that features the name or likeness of a particular person; and whether Congress should create a federal right of publicity that would apply to AI-generated materials.

These are just a few of the questions raised by the Copyright Office, and a full list of questions can be found in the Notice. Members of the public need not respond to each question. Respondents should clearly identify which question or questions they are responding to, provide the factual, legal, or policy basis for their response, and make clear whether they are submitting in their personal capacity or on behalf of an organization or entity that they represent. Responses should be submitted electronically through the regulations.gov system.

DWT will continue to provide updates regarding these and other issues in AI. If you have questions about the notice and comment process, or about the legal or practical implications of generative AI, please contact Jim Rosenfeld, Nicolas Jampol, or Ambika Kumar.