U.S. COPYRIGHT OFFICE CRACKING DOWN ON AI
U.S. Copyright Office puts the brakes on AI, compelling applicants to follow new registration guidelines.
Brief Summary:
AI generated content is currently unregistrable under U.S. copyright law.
To date, fewer than 100 U.S. copyright applications that contain AI-generated content have been received for registration.
In March, 2023, the U.S. Copyright Office launched an initiative to better regulate the inclusion of AI-generated content in works seeking copyright protection.
Effective March 16, 2023, the new registration process imposes upon applicants a “duty to disclose” AI-generated content in new copyright applications, previously filed applications, and already granted copyright registrations.
The new Copyright Office process aligns with current U.S. law, which mandates that unregistrable subject matter within a copyright application be disclosed and disclaimed in copyright applications and registrations.
The New Copyright Office Guidance:
In all U.S. copyright applications, disclosure of any AI-generated content is required when such content is deemed “appreciable” rather than, or more than, “de minimis”.
In these cases, the U.S. Copyright Office requires:
A statement in application describing the “appreciable” AI-generated content, which will not be protectible content, and explicitly disclaiming such content from the copyright application.
Disclosure of all human authored content, which is generally acceptable for copyright registration.
Disclosure of any previously registered material, that is, a description of the underlying registered work if the applicant seeks to register a new derivative work that includes AI-generated content.
While the requirement for disclosure of AI-generated content appears to be a new rule, U.S. copyright applicants have always been required to disclose uncopyrightable material in their applications for copyright.
The new U.S. Copyright Office guidance requires applicants and their attorneys to initially judge whether the AI-generated content would be copyrightable if generated by a human, and if so, then it would be an “appreciable” AI-generated content requiring disclosure in the copyright application for registration. If the AI-generated content would not be deemed copyrightable if generated by a human, then the content would be deemed “de minimis” and therefore not subject to disclosure in the copyright application for registration.
The guidance also permits previously filed copyright applications and granted registrations to be corrected by submitting a supplementary application or supplementary registration disclosing and/or disclaiming AI-generated content from the filed application or granted registration. Failure to update an application and/or registration may result in subsequent cancellation of the registration during an infringement action, and the applicant may risk losing the benefits of copyright registration.
For more information and examples of appreciable versus de minimis AI-generated content are at:
https://www.copyright.gov/newsnet/2023/1004.html
https://www.govinfo.gov/content/pkg/FR-2023-03-16/pdf/2023-05321.pdf
