U.S. Copyright Office to Begin Issuing Further AI Guidance in January 2025; The National Law Review, January 2, 2025

 John Hines of The Sedona Conference  , The National Law Review; U.S. Copyright Office to Begin Issuing Further AI Guidance in January 2025

"Parts 2 and 3, which have not yet been released, will be of heightened interest to content creators and to individuals and businesses involved in developing and deploying AI technologies. Ultimate regulatory and legislative determinations could materially recalibrate the scope of ownership and protection afforded to works of authorship, and the stakes are extremely high...

Part 2 of the report, which the Copyright Office expects to publish “after the New Year Holiday,” will address the copyrightability of AI-generated works, and more specifically, how the nature and degree of such use affects copyrightability and registrability. Current law is clear that to be copyrightable, a work must be created by a human. E.g., Thaler v. Perlmutter, 678 F.Supp. 140 (D.DC 2023), on appeal. However assistive tools are used in virtually all creation, from pencils to cameras to photo-editing software programs. In the context of registrability, the Copyright Office offered the following distinction in its March 2023 guidance: “[W]hether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” In Part 2, the Copyright Office will have an additional opportunity to explore these and related issues – this time with the advantage of the many comments offered through the Notice of Inquiry process.

Part 3 of the report, which the Copyright Office anticipates releasing “in the first quarter of 2025,” will focus on issues associated with training data. AI models, depending on their size and scope, may train on millions of documents—many of which are copyrighted or copyrightable— acquired from the Internet or through acquisition of various robust databases. Users of “trained” AI technologies will typically input written prompts to generate written content or images, depending on the model (Sora is now available to generate video). The output is essentially a prediction based on a correlation of values in the model (extracted from the training data) and values that are derived from the user prompts.

Numerous lawsuits, perhaps most notably the case that The New York Times filed against Microsoft and OpenAI, have alleged that the use of data to train AI models constitutes copyright infringement. In many cases there may be little question of copying in the course of uploading data to train the models. Among a variety of issues, a core common issue will be whether the use of the data for training purposes is fair use. Content creators, of course, point to the fact that they have built their livelihoods and/or businesses around their creations and that they should be compensated for what is a violation of their exclusive rights."

AI Developments at the U.S. Copyright Office in 2024; IP Watchdog, December 30, 2024

 BARRY WERBIN , IP Watchdog; AI Developments at the U.S. Copyright Office in 2024

"“The art challenges the technology, and the technology inspires the art.” Such is the conundrum facing the U.S Copyright Office in this era of rapidly expanding generative artificial intelligence technology. Human creativity has been the cornerstone of copyright protection for original works of authorship ever since the U.S. Constitution recognized copyright as a fundamental right to be protected for limited times. But the tenet that originality exists only when a human is primarily responsible for creating works of authorship is currently in flux and subject to extensive debate. Nowhere is this tension more visible than within the Copyright Office itself, which has been grappling with the core issue of what defines human creation when sophisticated technology like generative AI plays a significant role in creating works of authorship under the direction of a human creator."

Fate of AI and Fair Use Copyright Report Will Depend on Judges; Bloomberg Law, November 26, 2024

Jorja Siemons , Bloomberg Law; Fate of AI and Fair Use Copyright Report Will Depend on Judges

"Federal courts—not the US Copyright Office—will have the final say on implementing any recommendations from the office’s forthcoming report on the fair use ramifications of training AI on protected works...

Judges across the country are presiding over roughly three dozen lawsuits against OpenAI Inc., Microsoft Corp., Meta Platforms Inc., Anthropic PBC, and other AI companies. How they apply that framework as they wrestle with novel legal questions remains to be seen—and it may be Congress that benefits the most from the Copyright Office’s analysis."

Perlmutter Says Copyright Office Is Still Working to Meet ‘Ambitious Deadline’ for AI Report; IPWatchdog, November 14, 2024

EILEEN MCDERMOTT , IPWatchdog; Perlmutter Says Copyright Office Is Still Working to Meet ‘Ambitious Deadline’ for AI Report

"Asked by Subcommittee Chair Chris Coons (D-DE) what keeps her up at night when it comes to the AI issue, Perlmutter said “the speed at which this is all developing.” In September during IPWatchdog LIVE 2024, Perlmutter told LIVE attendees that while she’s confident the issues around copyright and AI will eventually be solved, she’s “less comfortable about what it means for humankind.”

Perlmutter recently came under fire from Committee on House Administration Chairman Bryan Steil (R-WI), who sent a letter On Tuesday, October 29, to the Office asking for an update on the AI report, which Steil charged is no longer on track to be published by its stated target dates. Steil’s letter asked the Office to explain the delay in issuance of parts two and three, which Register of Copyrights Shira Perlmutter indicated in an oversight hearing by the Committee on House Administration would be published before the end of the summer and in the fall, respectively. “The importance of these reports cannot be overstated,” Steil wrote, explaining that copyright owners are relying on the Office to provide clear guidance. “The absence of these reports creates uncertainty for industries that are already grappling with AI-related challenges and hinders lawmakers’ ability to craft effective policy,” the letter added.

Perlmutter commented in the hearing that “we’ve been trying to set and follow our own ambitious deadlines” and the goal remains to get the rest of the report out by the end of the year, but that her key concern is to be “accurate and thoughtful.”

The forthcoming reports will include recommendations on how to deal with copyrightability of materials created using GAI and the legal implications of training on copyrighted works. The latter is most controversial and may in fact require additional legislation focusing on transparency requirements."

Video game libraries lose legal appeal to emulate physical game collections online; Ars Technica, October 25, 2024

KYLE ORLAND, Ars Technica; Video game libraries lose legal appeal to emulate physical game collections online

"Earlier this year, we reported on the video game archivists asking for a legal DMCA exemption to share Internet-accessible emulated versions of their physical game collections with researchers. Today, the US Copyright Office announced once again that it was denying that request, forcing researchers to travel to far-flung collections for access to the often-rare physical copies of the games they're seeking.

In announcing its decision, the Register of Copyrights for the Library of Congresssided with the Entertainment Software Association and others who argued that the proposed remote access could serve as a legal loophole for a free-to-access "online arcade" that could harm the market for classic gaming re-releases. This argument resonated with the Copyright Office despite a VGHF study that found 87 percent of those older game titles are currently out of print."

Public Knowledge, iFixit Free the McFlurry, Win Copyright Office DMCA Exemption for Ice Cream Machines; Public Knowledge, October 25, 2024

 Shiva Stella , Public Knowledge; Public Knowledge, iFixit Free the McFlurry, Win Copyright Office DMCA Exemption for Ice Cream Machines

"Today, the U.S. Copyright Office partially granted an exemption requested by Public Knowledge and iFixit to allow people to circumvent digital locks in order to repair commercial and industrial equipment. The Office did not grant the full scope of the requested exemption, but did grant an exemption specifically allowing for repair of retail-level food preparation equipment – including soft serve ice cream machines similar to those available at McDonald’s. The Copyright Office reviewed the request as part of its 1201 review process, which encourages advocates and public interest groups to present arguments for exemption to the Digital Millennium Copyright Act.

Section 1201 of the DMCA makes it illegal to bypass a digital lock that protects a copyrighted work, such as a device’s software, even when there is no copyright infringement. Every three years, the Copyright Office reviews exemption requests and issues recommendations to the Librarian of Congress on granting certain exceptions to Section 1201. The recommendations go into effect once approved by the Librarian of Congress."

The Geography of Copyright Registrations; U.S. Copyright Office (USCO), September 11, 2024

 U.S. Copyright Office (USCO); The Geography of Copyright Registrations

"The U.S. Copyright Office has released a report, The Geography of Copyright Registrations. The study examines the geographic distribution of copyright claims registered by individuals and organizations within the United States. The purpose of the report is to better understand where the copyright system is used and how patterns of registrations differ across areas within the country.

The report reveals: 

• The majority of copyright registrations originate from a handful of large metropolitan areas. Approximately 40 percent of all copyright registrations originate from just five: New York, Los Angeles, Philadelphia, Washington, DC, and Chicago.
• Within the United States, certain geographic areas specialize in different types of creative works. For example, registrants in the South register many copyrights for musical works, registrants in the Northeast and Mid-Atlantic states register many literary works, and registrants in California specialize in film and dramatic works. 
• Some areas have a high volume of registrations simply because of their large populations. When controlling for population, numerous locations at the city level emerge where individuals, companies, or universities are registering high concentrations of creative works. 

This report uses data from copyright claims registered between 2009 and 2022. A forthcoming report will focus on the demographics of copyright registrations in the United States."

The Fast-Moving Race Between Gen-AI and Copyright Law; Baker Donelson, July 10, 2024

Scott M. Douglass and Dominic Rota, Baker Donelson ; The Fast-Moving Race Between Gen-AI and Copyright Law

"It is still an open question whether plaintiffs will succeed in showing that use of copyrighted works to train generative AI constitutes copyright infringement and be able to overcome the fair use defense or succeed in showing that generative AI developers are removing CMI in violation of the DMCA.

The government has made some moves in the past few months to resolve these issues. The U.S. Copyright Office started an inquiry in August 2023, seeking public comments on copyright law and policy issues raised by AI systems, and Rep. Adam Schiff (D-Calif.) introduced a new bill in April 2024, that would require people creating a training dataset for a generative AI system to submit to the Register of Copyrights a detailed summary of any copyrighted works used in training. These initiatives will most likely take some time, meaning that currently pending litigation is vitally important for defining copyright law as it applies to generative AI.

Recent licensing deals with news publishers appear to be anywhere from $1 million to $60 million per year, meaning that AI companies will have to pay an enormous amount to license all the copyrighted works necessary to train their generative AI models effectively. However, as potential damages in a copyright infringement case could be billions of dollars, as claimed by Getty Images and other plaintiffs, developers of generative AI programs should seriously consider licensing any copyrighted works used as training data."

You Can Create Award-Winning Art With AI. Can You Copyright It?; Bloomberg Law, June 5, 2024

Matthew S. Schwartz, Bloomberg Law; You Can Create Award-Winning Art With AI. Can You Copyright It?

"We delved into the controversy surrounding the use of copyrighted material in training AI systems in our first two episodes of this season. Now we shift our focus to the output. Who owns artwork created using artificial intelligence? Should our legal system redefine what constitutes authorship? Or, as AI promises to redefine how we create, will the government cling to historical notions of authorship?

Guests:

• Jason M. Allen, founder of Art Incarnate
• Sy Damle, partner in the copyright litigation group at Latham & Watkins
• Shira Perlmutter, Register of Copyrights and director of the US Copyright Office"

Copyright Board Upholds Latest Refusal to Register AI Generated Art; The Fashion Law (TFL), December 12, 2023

TFL ; Copyright Board Upholds Latest Refusal to Register AI Generated Art

"The Office primarily refused to register the work on the basis that it “lacks the human authorship necessary to support a copyright claim.” Specifically, the Office stated that despite Sahni’s claim that the work includes some human creative input, the work is not registrable, as “this human authorship cannot be distinguished or separated from the final work produced by the computer program.” 

Following an initial request for reconsideration, in which Sahni argued that “the human authorship requirement does not and cannot mean a work must be created entirely by a human author,” the Copyright Office again concluded that the work could not be registered, as it “is a derivative work that does not contain enough original human authorship to support a registration.” The Office found that “the new aspects of the [SURYAST] work were generated by ‘the RAGHAV app, and not Mr. Sahni – or any other human author,'” making it so that the “derivative authorship was not the result of human creativity or authorship” and therefore, not registrable."

International Copyright Issues and Artificial Intelligence; U.S. Copyright Office, Wednesday, July 26, 2023 11 AM - 1 PM EDT

U.S. Copyright Office; International Copyright Issues and Artificial Intelligence

The United States is not alone in facing challenging questions about generative artificial intelligence and its implications for copyright law and policy. On July 26, 2023, join the Copyright Office for a discussion on global perspectives on copyright and AI. Leading international experts will discuss how other countries are approaching copyright questions including authorship, training, and exceptions and limitations. They will provide an overview of legislative developments in other regions and highlight possible areas of convergence and divergence.

This webinar is a part of the Copyright Office’s initiative to examine copyright law and policy issues raised by AI technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. For more on copyright and AI, visit copyright.gov/ai.

Time: July 26, 2023, 11:00 a.m.- 1:00 p.m.

Speakers:

• Jane Ginsburg, Columbia Law School
• Andres Guadamuz, University of Sussex
• Bernt Hugenholtz, University of Amsterdam
• Matthew Sag, Emory University School of Law
• Luca Schirru, KU Leuven
• Marcus von Welser, Vossius
• Raquel Xalabarder Plantada, Universitat Oberta de Catalunya
• Shlomit Yanisky-Ravid, Ono Academic College
• Peter Yu, Texas A&M University School of Law"

The Library of Congress marks a year of helping solve copyright disputes; Federal News Network, July 14, 2023

 Tom Temin, Federal News Network; The Library of Congress marks a year of helping solve copyright disputes

"The Copyright Office’s equivalent of small claims court has helped hundreds of people solve disputes in its first year. The three-member Copyright Claims Board will help in cases worth up to $30,000. For a progress report,  Federal Drive with Tom Temin spoke with Claims Board member Brad Newberg."

Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say.; The Scholarly Kitchen, July 5, 2023

RICK ANDERSON, The Scholarly Kitchen; Why Does the U.S. Copyright Office Require Libraries to Lie to Users about Their Fair Use Rights? They Won’t Say.

"Let’s be clear about what the problem is here. It’s not that patrons who use library-provided copies of copyrighted works in a manner beyond the scope of “private study, scholarship, or research” are in legal danger if their use falls within the full range of the fair use provisions in section 107. Again, the language of section 108 makes it very clear that owners of such copies are entirely within their rights to make full (fair) use of them, regardless of what the copyright warning notice prescribed by the Copyright Office says. The problem is that the Copyright Office, under color of authority ostensibly assigned to it by statute, requires libraries to misinform patrons about their rights. Although library patrons are in reality free to make full fair use of copies we provide them (or copies they make on our premises), we must tell them – every time they make or request a copy from us – that they have only a small subset of those rights.

How much does this disinformation end up constraining patrons’ exercise of their full rights under the law? It’s impossible to know, of course. But as a profession that sees itself at the vanguard of the fight against both mis- and disinformation, it certainly should rankle us that we’ve been drafted into a disinformation campaign that affects so many information seekers so directly.

It should rankle us even more that the U.S. Copyright Office, the very entity that has created this issue and is uniquely empowered to fix it, seems to have no interest in doing so. I hope my library colleagues (and everyone else who cares about libraries and archives, and about fair use) will join me in calling on the Copyright Office to change the language of its prescribed copyright warning notice, bringing it into full conformity with what the law actually says. (I’ve created an online petition for this purpose, and encourage all interested to sign it.)"

International Copyright Issues and Artificial Intelligence; U.S. Copyright Office, Webinar: Wednesday, July 26, 2023, 11:00 a.m.–1:00 p.m. eastern time

 U.S. Copyright Office; International Copyright Issues and Artificial Intelligence Webinar

"The United States is not alone in facing challenging questions about artificial intelligence and its implications for copyright law and policy. On July 26, 2023, join the Copyright Office for a discussion on global perspectives on copyright and AI. Leading international experts will discuss how other countries are approaching copyright questions such as authorship, training, exceptions and limitations, and infringement. They will provide an overview of legislative developments in other regions and highlight possible areas of convergence and divergence involving generative AI.

This webinar is a part of the Copyright Office’s initiative to examine copyright law and policy issues raised by AI technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. For more on copyright and AI, visit copyright.gov/ai.

Time: July 26, 2023, 11:00 a.m.–1:00 p.m. eastern time

Speakers:

• Jane Ginsburg, Columbia Law School
• Andres Guadamuz, University of Sussex
• Bernt Hugenholtz, University of Amsterdam
• Matthew Sag, Emory University School of Law
• Luca Schirru, KU Leuven
• Marcus von Welser, Vossius
• Raquel Xalabarder Plantada, Universitat Oberta de Catalunya
• Shlomit Yanisky-Ravid, Ono Academic College
• Peter Yu, Texas A&M University School of Law"

Using AI to Create a Work – Copyright Protection and Infringement; JD Supra, June 27, 2023

Amy Goldsmith, Janet Linn, Tarter Krinsky & Drogin LLP, JD Supra; Using AI to Create a Work – Copyright Protection and Infringement

"Requirements For Past and Current Copyright Applications

Applicants are now required to disclose in their applications any AI-generated content and provide a brief explanation of the human author’s contribution. Any AI-generated content that is more than a tiny portion of the work must be explicitly excluded.

Pending applications must be corrected to conform to the new regulations. Applicants will need to contact the Copyright Office’s Public Information Office should a pending application not adequately disclose any AI-generated content.

For works already registered containing AI-generated material, a supplementary registration will be required describing the original material created by the human author and disclaiming the AI-generated material. Works with sufficient human authorship will be issued a supplementary registration certificate with a disclaimer of the AI-generated content."

The Copyright Claims Board Celebrates Its First Year; Library of Congress Blogs, Copyright Creativity At Work, June 26, 2023

Holland Gormley,  Library of Congress Blogs, Copyright Creativity At Work; The Copyright Claims Board Celebrates Its First Year

"This month marks a full year since the Copyright Claims Board (CCB) became available to the public, providing an efficient, streamlined way to resolve copyright claims involving damages of up to $30,000. Over the past twelve months, the CCB has delivered on the Copyright Office’s Copyright for All goal to expand access to justice and to make the copyright system as understandable and accessible to as many members of the public as possible. Let’s break down some of our milestones and review how we have created a truly accessible copyright tribunal."

Webinar: Registration Guidance for Works Containing AI-generated Content; U.S. Copyright Office, Wednesday, June 28, 2023 2 PM EDT

 U.S. Copyright Office; Webinar: Registration Guidance for Works Containing AI-generated Content

"Breakthroughs in generative AI technology have prompted growing curiosity about the registrability of works containing AI-generated material. On June 28, 2023, join the Copyright Office to learn about how the Office evaluates applications to register these types of works. Experts will walk attendees through the Office’s March 2023 Registration Guidance: Works Containing Material Generated by Artificial Intelligence and answer some frequently asked questions. At the end of the presentation, attendees will have an opportunity to submit questions to the Office’s experts.

Time: June 28, 2023, 2pm ET

Speakers:

• Rob Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice
• Erik Bertin, Deputy Director of Registration Policy and Practice"

Can you copyright the content you make with generative AI?; Descript via Fast Company, June 14, 2023

BRANDON COPPLE—DESCRIPT via Fast Company; Can you copyright the content you make with generative AI?

"So if you’re using generative AI tools to create any part of your content— the cover art for your podcast, the background for your video, anything— the best thing you can do is to be sure you’re employing as much human creativity in the process as possible. This might mean writing prompts with as much detail as possible—well beyond just suggesting ideas. You’ll want to be able to show you had a specific expression of your ideas in mind, and you just used the AI as a tool to generate it...

Of course, the line between what is merely an idea and what’s a specific expression of that idea is subjective, so it may be difficult to know whether what you have added rises to the level of something protectable. We can probably expect things to remain fairly murky, at least for a while. 

For now, Lisa warns that it is important to be aware that even highly detailed involvement in the process may not be sufficient to make the output protectible, as the Copyright Office has seemingly set a very high bar. So there may not be much you can to do prevent others from copying AI-generated output. That’s a key consideration when you’re deciding where and how to use generative AI in your creative process.

A final note: as Lisa points out, the Copyright Office did indicate that if someone sufficiently modifies generated output, that could be protectable. So, if you’re using generative AI as a starting point—e.g., using ChatGPT to create a rough draft and then rewriting it for your own voice—be sure you document the changes you made before you try to file for copyright protection, and then explain it in the application."

A terrible decision on AI-made images hurts creators; The Washington Post, April 27, 2023

Edward Lee, The Washington Post; A terrible decision on AI-made images hurts creators

"The Copyright Office’s position is wrong. It misunderstands authorship and ignores the copyright clause’s goal of promoting “progress” by offering authors incentives to create new works, including with new technologies.

Its decision also misunderstands the creative process."

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence; Federal Register, March 16, 2023

Federal Register; Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence

"SUMMARY:

The Copyright Office issues this statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence technology."