Generative AI tools like ChatGPT generally raise two kinds of copyright questions. The first is often referred to as the "input question" and has to do with training AI tools using in-copyright works, which are often scraped from the internet without permission from creators. Some copyright holders have claimed that using their work in this way infringes their copyrights, and some have sued the makers of AI tools. AI makers argue that copyright's fair use doctrine permits this use, and most legal scholars seem to agree that fair use has an important role to play. The second set of questions is often characterized as addressing "outputs" of AI, and asks whether the products of generative AI tools are (a) infringing the copyrights of their inputs, and (b) eligible for copyright protection as works of authorship in their own right. The US Copyright Office has taken the position that the Constitution requires human authorship for copyright, and it has denied registration to works alleged to be authored entirely by artificial intelligence tools. For works containing a mix of human- and AI-authored works, the Office will register copyrights only for the human-authored portions. These stances are being tested in court, with the August 2023 decision in Thaler v. Perlmutter validating the Office's approach to purely AI-authored works.
Brandon Butler. (2023, May 8). What AI can teach us about copyright and fair use. Freethink. https://www.freethink.com/robots-ai/what-ai-can-teach-us-about-copyright-and-fair-use
Congressional Research Service. (2023). Generative Artificial Intelligence and Copyright Law. https://crsreports.congress.gov/product/pdf/LSB/LSB10922
Copyright and Artificial Intelligence | U.S. Copyright Office. (n.d.). Retrieved August 18, 2023, from https://www.copyright.gov/ai/
Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence. (2023, March 16). Federal Register. https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence
Henderson, P., Xuechen L., Jurafsky, D., Tatsunori, H., Lemley, M.A. & Liang, P. (2023). Foundation Models and Fair Use. arXiv. http://arxiv.org/abs/2303.15715.
Lemley, M. (2023). Fair Learning. 44 Tex. L. Rev. 743. https://texaslawreview.org/fair-learning/
O’Reilly, T. (2023, April 14). You Can’t Regulate What You Don’t Understand. O’Reilly Media. https://www.oreilly.com/content/you-cant-regulate-what-you-dont-understand-2/
Sag, M. (2023) Copyright Safety for Generative AI. SSRN Scholarly Paper. Rochester, NY, May 4, 2023. https://doi.org/10.2139/ssrn.4438593.
Samuelson, P. (2023). Generative AI meets copyright. Science, 381(6654), 158–161. https://doi.org/10.1126/science.adi0656
Samuelson, P. (2023). Legal Challenges to Generative AI, Part I. Communications of the ACM 66, no. 7 (June 22, 2023): 20–23. https://doi.org/10.1145/3597151.
Thaler v. Perlmutter, No. 22-1564 (BAH) (D.D.C. August 18, 2023) https://storage.courtlistener.com/recap/gov.uscourts.dcd.243956/gov.uscourts.dcd.243956.24.0.pdf.
Artificial Intelligence and Intellectual Property: Part I — Interoperability of AI and Copyright Law. (2023, May 15). House Judiciary Committee Republicans. http://judiciary.house.gov/committee-activity/hearings/artificial-intelligence-and-intellectual-property-part-i
Artificial Intelligence and Intellectual Property – Part II: Copyright | United States Senate Committee on the Judiciary. (2023, July 12). https://www.judiciary.senate.gov/artificial-intelligence-and-intellectual-property_part-ii-copyright
Dai, Y. (n.d.). Research Guides: Machines and Society: Copyright, Authorship, and Governance. Retrieved August 18, 2023, from https://guides.nyu.edu/data/ai-governance
Generative AI Has an Intellectual Property Problem. (n.d.). Retrieved March 11, 2024, from https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem