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U.S. Copyright Office, Library of Congress.
Notice of inquiry and request for comments.
The United States Copyright Office is undertaking a study of the copyright law and policy issues raised by artificial intelligence (“AI”) systems. To inform the Office’s study and help assess whether legislative or regulatory steps in this area are warranted, the Office seeks comment on these issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.
Written comments are due no later than 11:59 p.m. Eastern Time on Wednesday, October 18, 2023. Written reply comments are due no later than 11:59 p.m. Eastern Time on Wednesday, November 15, 2023.
For reasons of governmental efficiency, the Copyright Office is using the
regulations.gov
system for the submission and posting of public comments in this proceeding. All comments should be submitted electronically through
regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at
https://copyright.gov/policy/artificial-intelligence. If electronic submission is not feasible, please contact the Office using the contact information below for special instructions.
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Rhea Efthimiadis, Assistant to the General Counsel, by email at
meft@copyright.gov
or telephone at 202–707–8350.
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I. Introduction
Over the last year, artificial intelligence (“AI”) systems and the rapid growth of their capabilities have attracted significant media and public attention. One type of AI, “generative AI” technology, is capable of producing outputs such as text, images, video, or audio (including emulating a human voice) that would be considered copyrightable if created by a human author.[1]
The adoption and use of
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generative AI systems by millions of Americans [2]
—and the resulting volume of AI-generated material—have sparked widespread public debate about what these systems may mean for the future of creative industries and raise significant questions for the copyright system.[3]
Some of these questions relate to the scope and level of human authorship, if any, in copyright claims for material produced in whole or in part by generative AI. Over the past several years, the Office has begun to receive applications to register works containing AI-generated material, some of which name AI systems as an author or co-author.[4]
At the same time, copyright owners have brought infringement claims against AI companies based on the training process for, and outputs derived from, generative AI systems.[5]
As concerns and uncertainties mount, Congress and the Copyright Office have been contacted by many stakeholders with diverse views. The Office has publicly announced a broad initiative earlier this year to explore these issues. This Notice is part of that initiative and builds on the Office’s research, expertise, and prior work, as well as information that stakeholders have provided to the Office.
II. The Copyright Office’s Past Work on Machine Learning and AI
The Copyright Office has long been engaged in questions involving machine learning and copyright. In 1965, the Office’s annual report noted that developments in computer technology had begun to raise “difficult questions of authorship”—namely the question of the authorship of works “`written’ by computers.” [6]
As the then-Register of Copyrights observed:
The crucial question appears to be whether the “work” is basically one of human authorship, with the computer 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.[7]
Because the answer depends on the circumstances of a work’s creation, the head of the Office’s Examining Division (and future Register) Barbara Ringer warned that the Office could not “take the categorical position that registration will be denied merely because a computer may have been used in some manner in creating the work.” [8]
As she noted, “a typewriter is a machine that is used in the creation of a manuscript[,] but this does not result in the manuscript being uncopyrightable.” [9]
This view was echoed a decade later by the National Commission on New Technological Uses of Copyrighted Works (“CONTU”),[10]
which agreed with the Office [11]
but declined to discuss the issue in depth because “[t]he development of this capacity for `artificial intelligence’ has not yet come to pass, and, indeed, it has been suggested to this Commission that such a development is too speculative to consider at this time.” [12]
In the intervening years, as AI moved out of the realm of speculation, the Office continued to participate in discussions on AI issues, from a 1991 conference hosted by the World Intellectual Property Organization (“WIPO”) [13]
to more recent events the Office co-hosted with WIPO [14]
and with the U.S. Patent and Trademark Office.[15]
Last year, in two separate copyright registration matters, the Office publicly addressed the question of copyright in AI-generated material. In the first instance, the Office refused to register a claim for two-dimensional artwork described as “autonomously created by a computer algorithm running on a machine.” [16]
The Office’s Review
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Board [17]
explained that the work could not be registered because it was made “without any creative input or intervention from a human author,” and that “statutory text, judicial precedent, and longstanding Copyright Office practice” all require human authorship as a condition of copyrightability.[18]
The Office’s registration denial, as well as the supporting legal analysis, was recently affirmed in federal district court.[19]
A second registration application, submitted in 2022, involved a work containing both human authorship and generative AI material. The work was a graphic novel with text written by the human applicant and illustrations created through the use of Midjourney, a generative AI system. After soliciting information from the applicant about the process of the work’s creation, the Office determined that copyright protected both the human-authored text and human selection and arrangement of the text and images, but not the AI-generated images themselves.[20]
The Office explained that where a human author lacks sufficient creative control over the AI-generated components of a work, the human is not the “author” of those components for copyright purposes.[21]
The Office continues to receive applications to register works incorporating AI-generated material, involving different levels of human contributions.[22]
III. The Office’s AI Initiative
In response to growing Congressional [23]
and public interest,[24]
the Office launched a comprehensive AI Initiative in early 2023. The Initiative identified a number of steps that the Office would take to further explore the copyright policy questions surrounding AI, including hosting public listening sessions and publishing a notice of inquiry.[25]
At the same time, the Office created a website,
www.copyright.gov/ai,
to provide information about the Initiative, including planned events and opportunities for public engagement.
a. March 2023 Registration Guidance
At the outset of the Initiative, the Office issued a statement of policy providing registration guidance on works containing AI-generated material (“AI Registration Guidance”).[26]
The AI Registration Guidance reiterated the principle that copyright protection in the United States requires human authorship. Under well-established case law, the Guidance explained, “the term `author,’ used in both the Constitution and the Copyright Act, excludes non-humans.” [27]
In the context of generative AI, this means that “[i]f a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.” [28]
The Guidance instructed applicants seeking to register works containing more than
de minimis
AI-generated material to disclose that the work contains such material and provide a brief explanation of the human author’s contributions.[29]
b. Public Listening Sessions
In April and May 2023, the Office held four public listening sessions to gather input on the copyright issues raised by generative AI. Each session focused on a different category of creative work: literary works, including print journalism and software; works of visual art; audiovisual works, including video games; and musical works and sound recordings. Over the four listening sessions, nearly 90 participants representing individual artists, academic experts, legal practitioners, technology companies, and industry associations shared their views with the Office. Transcripts, videos recordings, and agendas for each session are available on the Office’s website.[30]
c. Educational Webinars
In June and July 2023, the Office held two public webinars on generative AI, each of which drew an audience of nearly 2,000. The first webinar focused on registration of works containing AI-generated material. It included an overview of the Office’s general rules on how to register works containing material created or owned by someone other than the applicant, followed by examples illustrating how those rules apply to works that incorporate AI-generated material.[31]
The second webinar convened experts on different regions of the world to discuss international developments in generative AI and copyright law. These experts discussed how other countries are addressing copyright issues, including authorship, training, and exceptions and limitations. They provided an overview of legislative
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developments and highlighted possible areas of convergence and divergence.[32]
d. Engagement With Stakeholders
In addition to the public events described above, the Office has spoken with a broad spectrum of stakeholders, participating in dozens of meetings with academics, trade groups, individual creators, technology companies, and creative industries.[33]
These meetings have provided valuable information on the technical aspects of generative AI models and systems, how creators are using generative AI, and the continuing questions copyright applicants have about registering works that include AI-generated material.
IV. The Current Inquiry
Drawing on our prior AI Initiative work, including discussions with stakeholders, the Office has identified a wide range of copyright p
