Generative AI and copyright: principles, priorities and practicalities

Generative artificial intelligence (AI) is a stress test for copyright law. When is AI a mere tool, and when does it become an author? On 18 August 2023 in the first US court opinion to weigh in on the copyrightability of AI-generated art, the District Court for the District of Columbia held that, while copyright is ‘designed to adapt with the times’, ‘human creativity is the sine qua non at the core of copyrightability’. At the same time, it noted, ‘The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work’.

Creative control is pivotal, reflecting the need to preserve the essence of human-driven creativity from mechanistic outputs. For content creators, accurate documentation is paramount in establishing authorship. Careful identification and claiming of human-authored elements prevent challenges to copyright validity. The US Copyright Office thus obliges authors to use generative AI to identify themselves and highlight the elements that bear their creative mark.

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Work Title Generative AI and copyright: principles, priorities and practicalities
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Open Access
Creators
  1. Daryl Lim
License In Copyright (Rights Reserved)
Work Type Article
Publisher
  1. Journal of Intellectual Property Law and Practice
Publication Date October 27, 2023
Publisher Identifier (DOI)
  1. https://doi.org/10.1093/jiplp/jpad081
Deposited May 20, 2024

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Version 1
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  • Created
  • Added jpad081.pdf
  • Added Creator Daryl Lim
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  • Updated
  • Updated Work Title Show Changes
    Work Title
    • Editorial: AI and IP: The Road Ahead
    • Generative AI and copyright: principles, priorities and practicalities
  • Updated Publisher, Publisher Identifier (DOI), Description, and 1 more Show Changes
    Publisher
    • JOURNAL OF INTELLECTUAL PROPERTY LAW & PRACTICE (OXFORD UNIVERSITY PRESS)
    • Journal of Intellectual Property Law and Practice
    Publisher Identifier (DOI)
    • https://doi.org/10.1093/jiplp/jpad081
    Description
    • Generative artificial intelligence (AI) is a stress test for
    • copyright law. When is AI a mere tool, and when
    • does it become an author? On 18 August 2023 in
    • the first US court opinion to weigh in on the copyrightability
    • of AI-generated art, the District Court for
    • the District of Columbia held that, while copyright is
    • ‘designed to adapt with the times’, ‘human creativity
    • is the sine qua non at the core of copyrightability’.1
    • is the sine qua non at the core of copyrightability’.
    • At the same time, it noted, ‘The increased attenuation
    • of human creativity from the actual generation of the
    • final work will prompt challenging questions regarding
    • how much human input is necessary to qualify the
    • user of an AI system as an “author” of a generated
    • work’.2
    • work’.
    • Creative control is pivotal, reflecting the need to preserve
    • the essence of human-driven creativity from mechanistic
    • outputs. For content creators, accurate documentation
    • is paramount in establishing authorship. Careful
    • identification and claiming of human-authored elements
    • prevent challenges to copyright validity. The US Copyright
    • Office thus obliges authors to use generative AI to
    • identify themselves and highlight the elements that bear
    • their creative mark.3
    • their creative mark.
    Publication Date
    • 2023-01-01
    • 2023-10-27