By Barry Skidelsky
Barry Skidelsky is a former EASL Chair, an accomplished attorney, arbitrator, and consultant with expertise in entertainment, traditional and digital media, communications and technology. He may be contacted at 212-832-4800 or bskidelsky@mindspring.com.
The emergence of, and the recent expanding use of, Artificial Intelligence (AI) technology has raised the general public’s awareness of potentially significant benefits of AI tech as applied across numerous public and private sectors, as well as attendant burdens or concerns (e.g., regarding consumer protection and privacy, discrimination in employment and housing, and more).
Of particular interest to attorneys and their clients who are involved with entertainment, media and intellectual property are the public policy and legal issues found at the intersection of AI tech and copyright. For example, the issue of whether expressive works created by AI are entitled to copyright protection (and/or subject to exceptions provided under the Copyright Act, such as fair use) has already been the subject of legal disputes.
To date, courts and the U.S. Copyright Office (CO) considering this issue have focused on whether the subject work was created in whole or part by use of an AI tech platform, and whether the technology used could be characterized as merely a tool of human authors. Those considerations were raised in one recent dispute involving a comic book known as Zarya of the Dawn, where the CO reconsidered a previously granted registration for that work and then reduced the scope of protection granted after determining that the text, but not the images, of the comic book work were protectable (see https://fingfx.thomsonreuters.com/gfx/legaldocs/klpygnkyrpg/AI%20COPYRIGHT%20decision.pdf).
Thus, although not all AI generated expressive works may be categorically excluded from copyright registration, depending on the circumstances, that copyright registration protection afforded to AI generated content can be reduced retroactively, in particular, scares creators and the tech platforms used. They also face additional legal challenges, such as whether the use of copyrighted works to train generative AI without a license violates state and federal law (see https://www.reuters.com/legal/getty-images-lawsuit-says-stability-ai-misused-photos-train-ai-2023-02-06/).
While creators using AI primarily risk claims of direct copyright infringement, the tech platforms they use could also have secondary liability for copyright infringement. To further complicate matters, creators and generative AI platforms face different legal and regulatory requirements in the United States, in the European Union, and elsewhere around the world. To help address some of these legal uncertainties (at least in the United States), on March 16, 2023, the CO released a Policy Statement titled “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence” (see https://www.copyright.gov/ai/ai_policy_guidance.pdf).
On that same date, the CO also announced the Launch of a New Initiative to examine copyright law and policy issues raised by AI, including the scope of copyright in works generated using AI and the use of copyrighted materials in AI training (see https://www.copyright.gov/newsnet/2023/1004.html). As the CO’s announcement explained, “[T]his initiative is in direct response to the recent striking advances in generative AI technologies and their rapidly growing use by individuals and businesses. The Copyright Office has received requests from Congress and members of the public, including creators and AI users, to examine the issues raised for copyright, and it is already receiving applications for registration of works including AI-generated content.”
The CO also established a Four-Part Series of so-called Listening Sessions for the Spring of 2023 to focus on the “Use of Artificial Intelligence to Generate Works in Creative Fields” involving: (i) Literary Works, including Software (on April 19), (ii) Visual Arts (on May 2), (iii) Audiovisual works (on May 17); and, (iv) Music and Sound Recordings (on May 31). At each three-hour online session (each of which is scheduled to run from 1 p.m. to 4 p.m. EST), CO staff will ask participants to discuss their hopes, concerns, and questions about generative AI and copyright law.
Thus, the CO’s announcement invited artists, members of creative industries, AI developers and researchers working in those media, as well as lawyers involved with these issues, to attend one or more of these four sessions as listeners and/or to participate as speakers. To register as a listener or to participate as a speaker, see https://www.copyright.gov/ai/listening-sessions.html#literary-works.
As you can see, deadlines to participate as a speaker are set far in advance, so if you or someone you know wants to speak at any of these 4 sessions, I urge you to follow-up now. For additional info about the CO and AI, including the above and past events, see https://www.copyright.gov/ai/. More policy and law issues will surely come to the fore as the use of AI becomes more common among creators and users of creative content of all types. Stay tuned for further developments in this emerging and hot topic area, including a possible related CLE program sponsored by EASL.