1 month ago
8
Remember the monkey selfie case?
In Naruto vs. Slater, a monkey named Naruto took selfies using a camera set up by wildlife photographer David Slater. The photos were later published in a book crediting Slater and Wildlife Personalities as copyright owners. People for the Ethical Treatment of Animals (PETA) filed a copyright infringement complaint on behalf of Naruto. However, a US district court ruled that the Copyright Act does not allow animals to file copyright claims, establishing that works created by non-human beings are not protected under US law.
But what about works created by generative artificial intelligence or AI that is capable of producing literary and artistic works like photos, paintings, music and stories, which would typically be protected by copyright if they were original? ChatGPT is one such generative AI tool.
Can AI or AI-generated content be protected by copyright? How about those merely assisted by AI to create the work?
Just recently, the US Copyright Office (USCO) announced a significant change in its policy regarding copyright registration for works created with the help of generative AI. It clarified that AI-generated content could be eligible for copyright, provided a human contributed more significantly than the AI.
In its document Copyright and Artificial Intelligence, Part 2: Copyrightability, the USCO explained that using AI tools to assist human creativity, does not affect the availability of copyright protection. However, the office must analyze the content to determine if human contribution outweighs the AI’s role.
In August 2023, US District Judge Beryl Howell ruled that works created entirely by AI without any human input cannot be copyrighted under US law. This affirmed the Copyright Office’s rejection of computer scientist Stephen Thaler’s application for a copyright on a piece of visual art generated by his AI system, DABUS. Thaler claimed his AI had created the work independently, but Judge Howell emphasized that human authorship is a fundamental requirement for copyright protection.
In its report, the USCO Office explained that while existing principles of copyright law are flexible enough to accommodate generative AI, just as they have adapted to past technological innovations, AI-generated outputs can only be protected by copyright if a human author determines the expressive elements. This may include cases where a human author creatively arranges or significantly modifies AI outputs, but not when the human input is limited to providing simple prompts.
Shira Perlmutter, register of copyrights and director of the US Copyright Office, noted that after reviewing extensive public comments and technological developments, the conclusions center on the importance of human creativity in copyright. “Where that creativity is expressed through the use of AI systems, it continues to enjoy protection. Extending protection to material whose expressive elements are determined by a machine would undermine, rather than further, the constitutional goals of copyright,” she said.
US research organization RAND explained that US law requires AI to be merely an assisting tool that allows authors to express their own concepts. Simple instructions or prompts given to AI software that result in complex works will likely not meet the standard for copyright protection.
“For example, if a user instructs AI to write a poem in the style of a famous artist, the expressive elements are created by the AI, not the user, and the result would likely not be copyrightable. However, if the software only assists in expressing the author’s ideas, the output might be protectable. Similarly, if an author creatively arranges or significantly edits AI-generated content, the final work may qualify for protection,” RAND explained.
In one case, US automation company Invoke successfully registered an AI-generated image – the first such registration granted by the USCO–after demonstrating sufficient human creativity. The CEO of Invoke used the platform’s inpainting features to iteratively enhance the AI-generated artwork with approximately 35 human edits. The registration was based on the human author’s selection, coordination, and arrangement of the image’s components rather than the individual AI-generated segments.
When distinguishing AI-assisted from AI-generated works, the USCO relies on applicants’ disclosures. Minimal AI use, such as spell-checking or applying an automatic filter in photography, does not affect copyright eligibility. However, using simple commands to generate entire works likely results in content that is not copyrightable.
The office, however, acknowledged that the legal approach to works that fall between AI assistance and full AI generation is less clear and will continue to evolve.
Other countries have taken different stances.
The UK Copyright, Designs and Patents Act 1988 protects computer-generated works even if there is no human author, stating that the “author” is the person who made the arrangements necessary for its creation. Meanwhile, in China, courts ruled that an article created by AI using simple prompts was eligible for copyright protection because it demonstrated originality and creativity.
How the Philippines will address this emerging issue remains to be seen. Local copyright laws currently provide protection for literary, scholarly, scientific and artistic works by an author, but do not yet address AI-generated creations explicitly.
There is reportedly a growing amount of support, even within our own Intellectual Property Office, for the copyrightability of AI-generated literary and artistic works, as well as a similarly increasing resentment among traditional authors and artists to AI-made works.
What we must not lose sight of is the core purpose of copyright which is to protect literary and artistic creations of the human mind while promoting creativity. Technology will continue to evolve, and as it does, the law will need to adapt to ensure that the rights of human creators are preserved while also addressing the growing role of AI in creative processes.
For comments, email [email protected]
