AI: Copyright is Dying a Slow Death
Generative AI has raised several legal questions and concerns, particularly in the areas of intellectual property (IP) infringement, copyright, and ownership of AI-generated content. As AI continues to develop and become more mainstream, legal cases and court battles are emerging, addressing various aspects of IP law and its application to AI-generated content. The central thesis of this article is that if AI cannot copyright things, and most content will be AI-generated, then the inevitable conclusion is that copyright is going the way of the dinosaurs.
AI-generated works are not applicable to copyright protection requirements because they are not the result of human creativity. In the US, there is no copyright protection for works generated solely by a machine. These works could, in theory, be deemed free of copyright because they are not created by a human author, and as such, they could be freely used and reused by anyone. This raises the question of whether the current copyright system is becoming obsolete in the face of rapidly advancing AI technology.
If AI cannot copyright things, and most content will be AI-generated, then the inevitable conclusion is that copyright is going the way of the dinosaurs…
As AI-generated content becomes more prevalent, the legal landscape surrounding IP law and AI-generated content will likely change. Courts may need to grapple with questions about the degree of human involvement required for AI-generated works to qualify for copyright protection, as well as the application of fair use doctrine to AI-generated content. Additionally, companies developing and using generative AI tools will need to navigate the legal risks associated with IP infringement, data use, and ownership of AI-generated works.
The impact of generative AI on IP law is still unfolding, with courts and lawmakers grappling with the unique challenges and questions that AI-generated content presents. As AI technology continues to advance, it is essential for businesses, artists, and legal professionals to stay informed about the evolving legal landscape and its implications for IP law and AI-generated content.
The Battle Begins
A notable case in the realm of AI-generated art is a recent US court ruling that upheld the refusal of copyright protection for an AI-generated image, citing the absence of a “guiding human hand” in the artwork’s creation. This ruling raises questions about the degree of human oversight or intervention required for AI-generated works to qualify for copyright protection. United States District Court Judge Beryl A. Howell acknowledged that humanity is “approaching new frontiers in copyright,” where artists will use AI as a tool to create new work. She wrote that this would create “challenging questions regarding how much human input is necessary” to copyright AI-created art, noting that AI models are often trained on pre-existing work.
Most lawsuits about generative AI center on data use, with plaintiffs asserting violations of copyright law. In one case, a group of artists filed a lawsuit against generative AI companies, alleging that these organizations infringed the rights of “millions of artists” by training their AI tools on images scraped from the web without the consent of the original artists. The creators of AI art tools generally argue that the training of this software on copyrighted data is covered by fair use doctrine in the US. However, cases involving fair use still need to be litigated, and there are numerous complicating factors when it comes to AI art generators.
A US District Judge indicated that he was inclined to dismiss most of the lawsuit brought by the group of artists against generative AI companies, but would allow them to file a new complaint. This case provides a glimpse of how judges may treat lawsuits accusing companies of misusing material to train their AI systems.
As generative AI continues to evolve, the legal landscape surrounding IP law and AI-generated content will likely change as well. Courts may need to grapple with questions about the degree of human involvement required for AI-generated works to qualify for copyright protection, as well as the application of fair use doctrine to AI-generated content. Additionally, companies developing and using generative AI tools will need to navigate the legal risks associated with IP infringement, data use, and ownership of AI-generated works.
Uncertain Future
As we have explored throughout this article, the impact of generative AI on intellectual property law raises complex legal and philosophical questions. There are two possible paths that the future of IP law could take in response to the rise of AI-generated content.
First, IP law could be greatly overhauled to include AI-generated content. After all, AI is just another machine, and humans are ultimately steering its development and application. However, as AI becomes more autonomous, determining the extent of human involvement and responsibility in the creation of AI-generated works may become increasingly challenging.
Second, the question of whether AI-generated content should be protected under IP law quickly devolves into a philosophical debate over jurisprudence and personhood. These fundamental questions will ultimately need to be litigated at the highest levels, as courts and lawmakers grapple with the unique challenges and questions that AI-generated content presents.
The future of IP law in the age of generative AI remains uncertain. As AI technology continues to advance and become more prevalent, it is essential for businesses, artists, and legal professionals to stay informed about the evolving legal landscape and its implications for IP law and AI-generated content. The resolution of these complex legal and philosophical questions will shape the future of intellectual property law and determine the extent to which AI-generated works are protected and regulated.
Moot Point
As AI continues to advance, it is becoming increasingly capable of generating content similar to a content mill. This raises the question of whether it is necessary to bog down AI-generated content in IP law. Instead, the focus could shift to the ownership of AI models and the training data used to build them, which could become the new gold rush. In fact, data has been referred to as the “new oil”.
“Data is the new oil.” — A mantra that shockingly few people have heard of today
In a world where AI can churn out new content around the clock, there are a few potential directions for the future of content creation. One possibility is the rise of highly personalized content, or bespoke entertainment. In this scenario, there might not be much sense in copyrighting something that is personalized and has little market value.
For example, if companies like Netflix or Amazon were to focus on creating engines that can generate personalized TV shows and movies, they could concentrate on the subscription model. As these companies attract more subscribers and build better internal datasets (on the order of petabytes and larger), their “data flywheel” would become more efficient at producing bespoke content. This approach would prioritize the ownership and control of AI models and training data, rather than the copyright of individual AI-generated works.
Put it this way, if I were Netflix, I’d be doubling down on the AI-content flywheel. To heck with IP and copyright. It’s all about data now.
Lost Cultural Mythology
As we look to the future of generative AI and its impact on intellectual property law, I can’t help but feel a profound sense of melancholy amidst the excitement. While the prospect of personalized, bespoke entertainment tailored to each individual is incredibly alluring — like a virtual holodeck where our imagination is the only limit — I mourn the loss of something irreplaceable in the process.
The shared experiences that bring us together, the collective magic of everyone reading the same stories, seeing the same films, or playing the same games is powerful and profound in a way that personalized content simply cannot replicate. The communal joy of losing oneself in universally beloved worlds, discussing favorite characters and scenes with family and friends, bonding over iconic touchstones…this is the social glue that binds humanity across distance and difference.
As much as I eagerly anticipate the creative innovation AI will unleash, and as much as personalized stories may delight our individual spirits, nothing can replace the resonance of common myths and heroes that speak to our collective humanity. If we lose sight of those shared narratives in our race to customize and tailor, we may gain marvelous toys but lose far more.
What happens to the shared magic when AI can generate millions of unique versions of Harry Potter? Will we lose something vital if Luke Skywalker or Tony Stark become customizable characters rather than icons of our collective mythology? The joy of everyone experiencing the same story, discussing favorite scenes and debating implications with family and friends…this communal power cannot be replicated through individualized narratives.
I think of how Harry Potter united people across generations through common love of Hogwarts and its wizarding world. I think of the cultural phenomenon that was Endgame, when we collectively gasped, cried, and cheered over the fates of Iron Man and Captain America. As wondrous as AI-crafted stories may be, they cannot capture that cultural electricity — the kinds of tales that shape individuals precisely because they are shared widely.
I hope as we step into this strange new future, we do so with care, foresight and soulfulness. Perhaps there is a way forward that harnesses technology to generate boundless personalized experiences while still leaving space for universally beloved touchstones. The tales that unite us are worth safeguarding, even amidst the endless possibility on the horizon. By valuing both connection and innovation, we just may build a world where we need not sacrifice one for the sake of the other.
