On March 16, 2023, the U.S. Copyright Office (the Office) issued a statement of policy (the Guidance), describing how the Office examines human authorship under copyright law for applications to register works containing content generated with artificial intelligence (AI) technology. In the Guidance, the Office affirms that copyright may only protect material that is the product of human creativity, specifying that the term “author” excludes non-humans.

The Guidance states that in considering registration for works involving generative AI, the Office would begin by asking whether the work was one of human authorship, with the technology being an assisting instrument. The Office would further ask “whether the traditional elements of authorship in the work…were actually conceived and executed not by man but by a machine”. If the human user merely provided prompts and the AI technology determined the expressive elements of the output, then the generated material will not be considered a product of human authorship and the material is not protected by copyright.

However, in other cases, a work containing AI-generated material could contain sufficient human authorship to support copyright protection. The Guidance provides examples of these situations, including where a human (i) selects or arranges AI-generated material in such a creative manner that “the resulting work as a whole constitutes an original work of authorship”; or (ii) sufficiently modifies AI-generated material to meet the standard for copyright protection.

The Guidance emphasized that this is a case-by-case inquiry. The Guidance also reminds applicants that they have a “duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work”.

The Guidance concluded with an explanation of how applicants could submit applications for works containing AI-generated material, and the applicable method for correcting a previously submitted or pending application.

Summary By: Sharan Johal


23 04 05

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