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CC Responds to the United States Copyright Office Notice of Inquiry on Copyright and Artificial Intelligence

Better Internet, Copyright, Licenses & Tools, Technology

In August, the United States Copyright Office issued a Notice of Inquiry seeking public responses to 34 questions (and several sub-questions) about the intersection of copyright law and artificial intelligence. The comment period closed on 30 October with over 10,000 individuals and organizations responding, representing a broad spectrum of interests on how copyright should apply in relation to generative AI. CC joined in the conversation to provide our own thoughts on copyright and AI to the copyright office.

Since our founding, we have sought out ways that new technologies can serve the public good, and we believe that generative AI can be a powerful tool to enhance human creativity and to benefit the commons. At the same time, we also recognize that it carries with it the risk of bringing about significant harm. We used this opportunity to explain to the Copyright Office why we believe that the proper application of copyright law can guide the development and use of generative AI in ways that serve the public and to highlight what we have learned from our community through the consultations we have held throughout 2023 and at our recent Global Summit about both the risks and opportunities that generative AI holds.

In this post we summarize the key point of our submission, namely:

AI training generally constitutes fair use

We believe that, in general, training generative AI constitutes fair use under current U.S. law. Using creative works to train generative AI fits with the long line of cases that has found that non-consumptive, technological uses of creative works in ways that are unrelated to the expressive content of those works are transformative fair uses, such as Authors Guild v. Google and Kelly v. Arriba Soft. Moreover, the most recent Supreme Court ruling on fair use, Andy Warhol Foundation v. Goldsmith, supports this conclusion. As we commented upon the decision’s release, the Warhol case focus on the specific way a follow-on use compares with the original use of a work indicates that training generative AI on creative works is transformative and should be fair use. This is because the use of copyrighted works for AI training has a fundamentally different purpose from the original aesthetic purposes of those works.

Copyright protection for AI outputs subject to significant human creative input

We believe that creative works produced with the assistance of generative AI tools should only be eligible for protection where they contain a significant enough degree of human creative input to justify protection, just like when creators use any other mechanical tools in the production of their works. The Supreme Court considered the relationship between artists and their tools vis-a-vis copyright over 100 years ago in Burrow-Giles v. Sarony, holding that copyright protects the creativity that human artists’ incorporate into their works, not the work of machines. While determining which parts of a work are authored by a human when using generative AI will not always be clear, this issue is not fundamentally different from any other situation where we have to determine the authorship of individual parts of works that are created without AI assistance.

Additionally, we believe that developers of generative AI tools should not receive copyright protection over the outputs of those tools. Copyright law already provides enough incentives to encourage development of these tools by protecting code, and extending protection to their outputs is unnecessary to encourage innovation and investment in this space.

Infringement should be determined using the substantial similarity test

We believe that the substantial similarity standard that already exists in copyright law is sufficient to address where AI outputs infringe on other works. The debate about how copyright should apply to generative AI has often been cast in all-or-nothing terms — does something infringe on pre-existing copyrights or not? The answer to this question is certainly that generative AI can infringe on other works, but just as easily it may not. As with any other question about the substantial similarity between two works, these issues will be highly fact specific, and we cannot automatically say whether works produced by generative AI tools infringe or not.

Creators should be able to express their preferences

In general, we believe there is value in methods that enable individuals to to signal their preferences for how their works are shared in the context of generative AI. In our community consultations, we heard general support for preference signals, but there was no consensus in how best to do this. Opt-ins and opt-outs may be one way, but we do not believe they need to be required by US copyright law; instead, we would like to see voluntary schemes, similar to approaches to web scraping, which allow for standardized expression of these preferences without creating strict barriers to usage in cases where it may be appropriate.

Transparency is necessary to build trust — Copyright is only one lens through which to consider AI regulation

We urge caution and flexibility in any approach to regulating generative AI through copyright. We believe that copyright policy can guide the development of generative AI in ways that benefit all, but that overregulation or inappropriate regulation can hurt both the technology and the public. For example, measures that improve transparency into AI models can build trust in AI models by allowing outside observers to “look under the hood” to investigate how they work. But these measures should not be rooted in copyright law. Copyright is just one lens through which we can view generative AI, and it is ill equipped to deal with many of the social harms that concern us and many others. Attempting to use copyright to solve all of these issues may have unintended consequences and ultimately do more harm than good.

We are happy to see the Copyright Office seeking out guidance on these many difficult questions. We will have to wait to see what comes from this, but we will hope for the best, and continue to engage our community so we can more fully understand what role generative AI should play in building the commons and serving the public good.

Read CC’s full submission to the Copyright Office >

Like the rest of the world, CC has been watching generative AI and trying to understand the many complex issues raised by these amazing new tools. We are especially focused on the intersection of copyright law and generative AI. How can CC’s strategy for better sharing support the development of this technology while also respecting the work of human creators? How can we ensure AI operates in a better internet for everyone? We are exploring these issues in a series of blog posts by the CC team and invited guests that look at concerns related to AI inputs (training data), AI outputs (works created by AI tools), and the ways that people use AI. Read our overview on generative AI or see all our posts on AI.

Note: We use “artificial intelligence” and “AI” as shorthand terms for what we know is a complex field of technologies and practices, currently involving machine learning and large language models (LLMs). Using the abbreviation “AI” is handy, but not ideal, because we recognize that AI is not really “artificial” (in that AI is created and used by humans), nor “intelligent” (at least in the way we think of human intelligence).

Posted 07 November 2023