White & Case Tech Newsflash

As we recently discussed, the rapid pace of development and adoption of artificial intelligence ("AI") technology, especially generative AI, has led to numerous questions for intellectual property law. 

Recognizing the need for public guidance, last week, the U.S. Copyright Office (the "Office") published a "statement of policy to clarify its practices for examining and registering" works containing AI-generated content (the "Guidance"), providing:

1. Human Authorship Requirement

U.S. copyright law requires "human authorship" to register copyrighted works, because "author" as used in the Copyright Act, "excludes non-humans." Referencing SCOTUS and federal appellate case law, the Office confirmed that it "will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

2. Application of this Human Authorship Requirement

In evaluating works containing AI-generated material, the Office will begin by asking "whether the 'work' is basically one of human authorship, with a 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 [a human] but by a machine." In essence, are the AI contributions the result of "mechanical reproduction" or the human author's "own original mental conception, to which [the author] gave visible form." This analysis will be conducted on a case-by-case basis and will depend on how the AI technology operates, as well as how the technology was used to create the work. 

The Guidance clarifies that works generated by AI technology in response to human prompts, where the AI system executes the "traditional elements of authorship" (i.e., the expressive elements of the output) and the human does not exercise sufficient creative control over the way in which the prompts are interpreted, will not be protectable by copyright. The Guidance does note that works containing AI-generated materials may contain sufficient human authorship to support a copyright claim where:

• a human has selected or arranged the AI-generated materials in a sufficiently creative way such "that the resulting work as a whole constitutes an original work of authorship" – in such cases, the computer generated materials will not be protected outside of the compilation; and
• a human modifies AI-generated materials to such a degree that the modifications meet the standard for copyright protection (i.e., if the modifications contain a sufficient amount of original authorship). 

In such cases, copyright will only "protect the human-authored aspects, which are 'independent of' and do 'not affect' the copyright status of the AI-generated material itself."

Guidance for Submitting U.S. Copyright Applications that involve AI-Generated Content

Based on the Guidance, applicants who intend to submit an application for works containing AI-generated materials should consider the following:

1. The application should identify the human author(s) and provide a brief statement in the "Author Created" field that describes the authorship that was contributed by a human.
2. If the application involves the creative arrangement of human and non-human content, the "Author Created" field should be filled out to claim "Selection, coordination, and arrangement of [describe human-authored content] created by the author and [describe AI content] generated by [AI]."
3. The application should not list the AI technology or the company providing such technology as the author or co-author.
4. If the AI-generated content is more than de minimis, the application should explicitly exclude such content, which can be done in the "Limitation of Claim" section under the "Other" field and "Material Excluded" heading, by including a brief description of such content.
5. If the applicant is unsure of how to fill out the application, they may provide a general statement in the application that the work contains AI-generated content and the Office will contact the applicant when the claim is reviewed.

The Guidance also contains information with respect to correcting previously submitted applications.

Not the Final Word …

The Office clarifies that the Guidance is based on its understanding of generative AI currently available, and concludes by stating that the Office may issue additional guidance in response to future developments in this space. Given the rapidly evolving technology and that each claim will be analyzed on a case-by-case basis (including with respect to the AI technology involved), many questions remain unanswered and may ultimately require resolution by the courts. The Guidance forms part of the Office's new AI initiative including the launch of a new website and its plan to publish a notice of inquiry and hold public listening sessions to elicit input on this and related topics, including the use of copyrighted works in AI training data.