Beware, Copyright Office Guidelines require disclosure of AI-generated content, or else!
By Bill Honaker, The IP Guy
The US Copyright Office, courts, and businesses are all busy writing policies and regulations regarding Artificial Intelligence. But, focusing on AI without a good definition leads to confusion and uncertainty.
Definitions are important. When I started at Dickinson Wright, eighteen years ago, one of my partners, a former golf club president, asked about my golfing skills. “On a good day I could shoot in the mid 70s.” He excitedly said he would get us a tee time. I clarified, “We’re talking about nine holes, right?” We never discussed golf again.
There’s a big difference between “AI-generated” and “Generative AI.” The problem is that AI is baked into everything digital. Google uses AI in searches, Maps, photos, Assistant, YouTube, Gmail, and Ads. Grammarly, the free writing assistant has used AI for a decade. Speech-to-text software like Rev uses AI. For years Digital cameras have been using AI for facial recognition, redeye fix, subject recognition, and zoom and enhance. These are just few of the tools that authors and artists use. In my opinion, a blanket prohibition restricting the use of AI goes way too far.
In recent years, AI has had a profound impact, but it’s been around longer than you may realize. Alan Turing’s 1950 paper, “Computer Machinery and Intelligence” is considered to be the first discussion of AI-related concepts. The term “artificial intelligence” was first coined by emeritus Stanford Professor John McCarthy in 1955. He defined it as, “the science and engineering of making intelligent machines.”
IBM offers this definition of AI:
| At its simplest form, artificial intelligence is a field which combines computer science and robust datasets to enable problem-solving. It also encompasses sub-fields of machine learning and deep learning, which are frequently mentioned in conjunction with artificial intelligence. These disciplines are comprised of AI algorithms which seek to create expert systems which make predictions or classifications based on input data. |
The recent push for policies and regulations seems to be in response to ChatGPT, Google Bard, and other generative AI models. Concern and early mistakes made in their use have caused well-placed concern. But the various policies I’ve reviewed fail to adequately define what’s being policed. IBM again provides a good definition of Generative AI. It “refers to deep-learning models that can generate high-quality text, images, and other content, based on the data they were trained on.” Other examples of generative AI are, Microsoft Copilot, Midjourney, and Dall-E2.
The US Copyright Guidelines: Works Containing Material Generated by Artificial Intelligence is an example of restrictions that go too far, because AI is not defined. The Guidelines refer to AI-generated work, not generative AI. The Guide states:
| Consistent with the Office’s policies described above, applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work. As contemplated by the Copyright Office such disclosures are ‘information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.’ |
For works that are already registered, the applicant must submit a supplemental registration to correct the filing.
With this broad definition of AI, many applicants will have to identify the AI used and registrants will need to file supplemental applications. For example, it appears that if a digital camera was used, then all digital images are subject to this requirement.
Here’s a photo recently sent to me by a friend. It was shot outdoors, late in the evening, by the light of a tiny gas fire. The photographer pointed the camera and pixel-by-pixel, the camera’s AI software did the rest. By the standard now required, an applicant registering its copyright would need to identify that it’s AI-generated. Do you have to disclose the use of Adobe; they’ve used AI for over a decade. Photoshop now uses AI to fill in an imagined background. Will the use of a digital transcription tools like REV need to be included as well?
All existing digital photos would appear to require supplemental registrations to avoid their cancellation. As stated in the Guidelines:
| Applicants who fail to update the public record after obtaining a registration for material generated by AI risk losing the benefits of the registration. If the Office becomes aware that information essential to its evaluation of registrability “has been omitted entirely from the application or is questionable,” it may take steps to cancel the registration. Separately, a court may disregard a registration in an infringement action pursuant to section 411(b) of the Copyright Act if it concludes that the applicant knowingly provided the Office with inaccurate information, and the accurate information would have resulted in the refusal of the registration. |
I doubt this was this the intent of the Guidelines, but, to avoid losing your Copyright, you should file the supplemental application or receive written guidance from the Copyright Office that digital camera AI is de minimis and not required.
I called the Copyright Office and asked whether I had to disclose the use of a digital camera that uses AI. I was told that if AI was involved, you must disclose it. I asked about previously registered copyrights and after a very long pause was told to read the information at Copyright.gov/AI. He ended the call by saying “good luck”.
I suspect that this broad definition of AI will be used in future Copyright lawsuits to challenge the protection of many copyrighted images and writings. Unless further guidance is provided by the Copyright Office a Pandora’s Box of attacks will be unleased on Copyright owners.
Bill Honaker, “The IP Guy,” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter click here.
To get answers to your questions click here. To schedule a time to talk, email Bill@IPGuy.com, or give him a call at 248-318-7015.