The rise of generative AI has sparked a widespread public debate about what this emerging tool may mean for the future of the creative industry. With the lack of concrete AI regulations from Capitol Hill, significant questions have been posed for the future of the nation’s copyright system.

The U.S. Copyright Office within the Library of Congress is asking for comments on policy issues raised by AI, including the legal status of AI-generated works and the appropriate treatment of AI-generated outputs that mimic work of human artists.

According to a notice of inquiry and request for comments published in the Federal Register today, comments from stakeholders will inform the office’s study of AI issues and be used to advise Congress on potential areas for legislative and regulatory action.

Written comments are due by Oct. 18, and reply comments are due by Nov. 15.

Specifically, the U.S. Copyright Office is seeking factual information and views including the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, the legal status of AI-generated outputs, and the appropriate treatment of AI-generated outputs that mimic personal attributes of human artists.

The document acknowledges that there is disagreement about whether and when the use of copyrighted materials to train AI models is infringing.

The office is seeking information about the collection and curation of AI datasets, how they train models, the sources of materials, and whether permission by or compensation for copyright owners should be required when their works are included. It also asked if developers of AI models should be required to retain training materials, and whether such materials should be disclosed.

The office is also interested in how copyright principles could be applied to infringing material created by AI systems.

“If an output is found to be substantially similar to a copyrighted work that was part of the training dataset, and the use does not qualify as fair, how should liability be apportioned between the user whose instructions prompted the output and developers of the system and dataset,” the notice asked.

The notice asked respondents to consider whether the substantial similarity test is adequate to address claims of infringement stemming from AI-generated content, and how a copyright owner could prove copying if the AI model’s developer doesn’t maintain or make available its training materials.

Other issues identified included the labeling or identification of AI-generated materials and potential protections for artists whose artistic style can be imitated by AI systems.

The Copyright Office is also seeking input on the proper scope of copyright protection for material created using generative AI.

The offices notes that “the law is clear that copyright protection in the United States is limited to works of human authorship,” but questions remain about “where and how to draw the line between human creation and AI-generated content.”

The notice comes less than two weeks after a Federal judge in D.C. affirmed the office’s refusal to register artwork created by AI, holding such work isn’t eligible for copyright protection because it lacks human authorship.

The Copyright Office has been dealing with “difficult questions of authorship” since 1965 – when computer technology advances pushed forth the idea of AI-generated material. Last year, the office deemed that work could not be registered for copyright without any creative input from a human author. This raises questions on the proper scope of copyright protection for AI.

The notice of inquiry is an integral next step for the Copyright Office’s AI initiative, which was launched in early 2023.

“We launched this initiative at the beginning of the year to focus on the increasingly complex issues raised by generative AI. This notice of inquiry and the public comments we will receive represent a critical next step,” Shira Perlmutter, director of the U.S. Copyright Office, said in a statement. “We look forward to continuing to examine these issues of vital importance to the evolution of technology and the future of human creativity.”

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Cate Burgan
Cate Burgan
Cate Burgan is a MeriTalk Senior Technology Reporter covering the intersection of government and technology.