On August 30, the U.S. Copyright Office issued a Notice of Inquiry on Copyright and Artificial Intelligence. The goal of the Notice of Inquiry is to further inform the Office’s study of AI and to evaluate whether legislative or regulatory steps are needed.  

In March, the Copyright Office issued a statement of policy in which it clarified that human authorship is required for work containing AI-generated content to be eligible for copyright protection. Recently, the D.C. District Court affirmed this position taken by the Copyright Office, ruling that an image created by DABUS, an AI algorithm, is not copyrightable. While that question is settled, there are many more questions related to copyright and AI that are still up in the air and have no easy answers. 

The current Notice of Inquiry poses a long list of copyright questions related to AI. These questions focus on four areas: 

• the use of copyrighted works to train AI models
• the copyrightability of output generated by AI systems
• potential copyright infringement by works generated using AI systems
• generative AI outputs that imitate the identity or style of human artists

Some of the questions are about facts, such as “How or where do developers of AI models acquire the materials or datasets that their models are trained on?” Other questions seek the public’s views on topics, including those that are being hotly debated or have been the focus of recent lawsuits against AI companies, such as whether the unauthorized use of copyrighted works to train AI models is fair use, whether consent from copyright owners should be needed to use their works for training of AI models, whether AI-generated outputs would implicate the exclusive rights of preexisting copyrighted works, whether substantial similarity test is still the appropriate test to address claims of infringement based on outputs of generative AI, how the prohibition against removal or alteration of copyright management information under the Digital Millennium Copyright Act (DMCA) would apply to the output of a generative AI system trained on copyrighted works containing copyright management information, and whether Congress should establish a new federal right of publicity that would apply to AI-generated material.    

The Copyright Office launched its AI initiative early this year. This Notice of Inquiry signals that the Office is well on its way of taking a comprehensive look at the intersection of copyright law and AI. The Notice came after Congressional hearings that focused on some of the same topics. The Federal Trade Commission (FTC) touched upon generative AI and copyrighted works in its recent blog. Generative AI’s rapid ascent has done an amazing job garnering the attention of legislators and regulators alike. It is certainly an exciting time for AI law. We will continue to watch this space closely and bring you updates.