Who gets credit when AI creates it?
As AI technology advances, the question of copyright for AI-generated content becomes increasingly pressing. AI can now create a growing range of creative works that were once exclusively within the realm of human creativity. The topic is complex that enough the U.S. Copyright Office published a statement of policy requesting public input on how copyright should be determined for AI-generated works in 2023. They received over 10,000 comments from the general public and will publish a report to determine the next steps in 2024.
While copyright law has its intricacies, there are three basic requirements for a body of work to be eligible for copyright. It must be a work of authorship, fixed, and original. Let’s break these down in the context of AI-generated work.
A work of authorship is a creative work, including “literary works, musical works, pictorial, graphic, and sculptural works, audiovisual works, and sound recordings.” AI has progressed to the point where literary works, videos, and images can be generated, which satisfies this component.
The second requirement is for the work to be “fixed in a tangible medium of expression.” Writing a work down on paper, typing it, or recording it satisfies this component. However, an unrecorded improvisation would not. Despite the word “fixed,” it doesn’t have to be completed, just documented.
Finally, let’s take a look at the originality component. For a work to be original, it must not be copied from an earlier work and have “at least a modicum” of creativity involved. This is where it gets more complicated. Because of a fair use law that allows the use of copyrighted material in some scenarios, the training data may or may not be copyrighted. The model learns from this training data, detecting patterns, and eventually learning to create similar works. However, AI often replicates segments of the training data, which could potentially disqualify the resulting work from meeting the originality criteria required for copyright.
Currently, AI-generated works do not enjoy copyright protection. However, it’s not quite that simple. Sometimes, there will be enough human contribution that it is eligible for copyright. For example, a human could arrange the AI-generated works in a way that requires enough creativity to be eligible for copyright. In these cases, only the human-created elements would be protected.
This doesn’t mean that no copyright applications for AI-generated works are being submitted. In 2021, a copyright application for a painting called “Suryast” was accepted in India and Canada with the AI app and the owner as co-owners of the copyright. The US is still receiving copyright applications for AI-generated works despite not recognizing non-human ownership.
Copyright law still isn’t set in stone about what to do about AI copyright law. Many different parties have been proposed as potential owners of the copyright, including the programmer of the AI, the creator of the training data, the AI platform itself, and more. It’s clear that the current policy isn’t working because what companies are doing in practice doesn’t comply with the copyright office’s policy. AI technology has advanced to the point where AI-generated works such as images, artwork, and articles are prevalent in everyday life and will only become more integrated into our lives over time. It’s important to recognize the contributions of all those involved when reaching a solution: the programmers, the creators of the training data, the creator of the prompt, and more.
