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Ever since their launch, text-to-image generative AIs like DALL-E and Stable Diffusion have sparked a debate about the eligibility of AI-generated images for copyright protection. Now, the US Copyright Office (USCO) has issued new guidance on the matter, providing much-needed clarity on the copyrightability of such works.
According to the USCO, AI-generated images will not be eligible for copyright protection. This is because, in these images, the AI determines how it implements the instructions, while the human user only identifies what the prompter wishes to have depicted. In other words, the technology executes the traditional elements of authorship, not the human user.
While some would argue that there is a level of human creativity involved, the USCO argues that users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Copyright can only protect material that is the product of human creativity.
UNCO’s evaluation
The USCO’s evaluation of whether AI-generated works contain elements of human creativity depends on whether the model’s contributions are the result of “mechanical reproduction” or the author’s “own mental conception. Thus, works that lack human authorship will not be eligible for copyright protection. However, the UNCO did also acknowledge that they will consider granting copyright protection to AI-generated elements depending on the circumstances surrounding the artist’s use of the AI in the final work.
The USCO’s decision follows an initiative prompted by Congress to explore copyright law and policy issues related to AI. The USCO plans to host panel discussions on the topics later this year, as it intends to hear public comments on a range of copyright issues relating to the use of AI.
“The Office recognizes that AI-generated works implicate other copyright issues not addressed in this statement. It has launched an agency-wide initiative to delve into a wide range of these issues. Among other things, the Office intends to publish a notice of inquiry later this year seeking public input on additional legal and policy topics, including how the law should apply to the use of copyrighted works in AI training and the resulting treatment of outputs,” says the UNCO.
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