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Copyright Office Sets Sights on Artificial Intelligence in 2023

Dec. 29, 2022, 10:00 AM

The US Copyright Office over the next year will focus on addressing legal gray areas that surround copyright protections and artificial intelligence, amid increasing concerns that IP policy is lagging behind technology.

“Developments are happening so quickly and so pervasively in so many different fields that I think in a way that is taking up most of the oxygen in the room these days,” Shira Perlmutter, register of copyrights and the office’s director, told Bloomberg Law in an interview.

The agency is standing by its decision that a copyright can’t be registered for a work created exclusively by an AI—an issue at the heart of an ongoing lawsuit against the office. However, Perlmutter said the office is exploring open questions on copyright registration for works created by humans in conjunction with AI.

Such considerations come as AI platforms like DALL-E and ChatGPT rise in popularity. Those programs generate images and write text, respectively, based on user prompts, triggering backlash from some artists and creators who say the content used to train the AIs infringes their copyrights.

“Certainly almost every day in the news, you read about some new development with AI,” Perlmutter said. “And it’s not just that the technology is developing, but that people are starting to use it.”

Perlmutter said the office’s main priorities for 2023 also include making progress with a newly created copyright small claims tribunal, and ensuring that copyright protections are more accessible to underrepresented and underserved communities.

Human Authorship

Perlmutter said the Copyright Office has been considering the potential impact of artificial intelligence for several years.

“When we started looking at it, it was a very interesting intellectual exercise primarily and now it’s become very real,” she said.

The office is currently defending itself against a federal lawsuit filed earlier this year by inventor Stephen Thaler, who argues that copyright protections should cover works created entirely by artificial intelligence.

Perlmutter said the office, which rejected Thaler’s registration application, applied existing case law to determine that human authorship is a prerequisite for copyright protection.

“The more difficult cases that are likely to come up in the future will be cases where there is some level of human creativity,” she said. “And then the question is, does it rise to the level of authorship under all the case law that’s been developed over the years? So this issue was only going to get more complex and will continue to be before us.”

The office’s job is further complicated by its reliance solely on the facts presented in an application for copyright registration, as it has no way to verify whether AI is credited appropriately in the application.

Additionally, she said the office is looking at international standards that allow certain copyrighted text and data to be used for training AI machines. But it’s also trying to maintain a balance that respects the rights of creators whose work is being used for AI training without inhibiting the creation of interesting and exciting new works.

Small Claims Board

One of the major changes for the Copyright Office in 2022 was the introduction of a Copyright Claims Board, which began operating in June as a voluntary alternative to district court litigation for infringement claims of $30,000 or less.

“This year, the big milestone was having the board open its doors and start accepting claims,” Perlmutter said, adding that board decisions will start coming in the next year.

Though it is “still early days” and it remains unclear what the standard volume of claims will be, Perlmutter said she is “extremely impressed” with how well the board is doing. It’s received over 260 cases so far.

She added that several of the cases have been dismissed. The office believes that means they’ve been settled, which would adhere to the alternative dispute resolution mechanism of the board, she said.

“We set up this totally new tribunal in really record time. I think most other agencies who have seen what we’ve done can’t understand how we managed that in under a year and a half, because it required a lot of work,” she said.

‘Copyright for All’

Earlier this year, the Copyright Office published a 2022-2026 strategic plan outlining four overarching goals, including “copyright for all,” continuous development, impartial expertise, and enhanced use of data.

The introduction of the small claims board was a “huge step forward” in relation to these goals and making the copyright system more accessible by bringing in people that haven’t been able to participate in the justice system for their claims, Perlmutter said. “The CCB opens up that possibility to people who are essentially foreclosed from asserting their rights before as a practical matter.”

Additionally, the office is aiming to make materials available in Spanish, and partnering with the Council for Inclusive Innovation to find “new ways to reach out and bring more people into the innovative and creative economy,” Perlmutter said.

Copyright Office Chief Economist Brent Lutes is working on research aimed at helping to close the gender gap in the copyright system, as well as identifying other underrepresented and underserved communities.

In June, the office issued a report on women in the copyright system that showed that women authors remain underrepresented in the use of the registration system.

Perlmutter also highlighted the office’s modernization initiatives and its shift from an “antiquated” paper-based recordation system to a publicly accessible online system that has reduced processing time from months to weeks.

“We’re very proud of what we’ve accomplished in ’22,” she said.

To contact the reporter on this story: Riddhi Setty in Washington at rsetty@bloombergindustry.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Tonia Moore at tmoore@bloombergindustry.com