Issues, policy, and open areas of law

Whether training ingestion of copyrighted content is permissible fair use to the arguably derivative nature of generative-AI’s output to nuanced – and internationally variable – registrability requirements for works created utilizing generative AI, there can be no question that generative AI is transforming the landscape of copyright law. What are the issues at the forefront of AI copyright law? And what should companies bear in mind as they navigate this evolving landscape?

One headline issue surrounds whether the ingestion of copyrighted material, absent permission, for the purposes of training generative AI tools is an impermissible use under copyright law that infringes the copyrights held in the underlying material. Several lawsuits including class actions have been filed on these grounds, with fair use defenses being asserted in response. These issues are live before the courts and yet to be decided, but should be closely followed by companies developing and deploying generative AI.

A second issue concerns whether, because of the way generative AI models are trained, their output is an infringing derivative of the copyrighted works they ingest. While any risk will be circumstance specific, including with respect to the particular content ingested, commands used and output generated, both generative AI developers and users should be aware of the potential liabilities – including direct and vicarious – associated with arguably infringing generative AI output.

Third, copyright registrants and litigants are well-advised to stay abreast of the nuanced and evolving registrability requirements for works involving generative AI, which are likely to implicate copyright litigation more broadly. In March 2023, the U.S. Copyright Office issued a statement of policy applying a human authorship requirement for copyrightability in setting forth a case-by-case approach as to whether AI-generated content is eligible for copyright protection, concluding that works created by generative AI in response to human prompting do not. That policy statement also requires that AI-generated material be disclosed when applying for copyright registration, that previously filed applications which do not disclose the use of AI be corrected, and that supplemental registrations identifying and disclaiming any AI-generated material contained within previously-registered works be filed. These human authorship and registration requirements, combined with varying registrability policies in other Berne Convention jurisdictions, are likely to give rise to significant avenues for discovery and attacks on validity in copyright litigation moving forward.

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