How Does Generative AI Technology Affect Copyright?

August 29, 2024 (Last Updated September 18, 2024)

Generative AI is having a significant impact on book copyright, raising complex legal and ethical questions. The main issues revolve around the creation, ownership, and use of AI-generated content, and how traditional copyright laws apply to these works. Here are some key considerations:

Authorship and Ownership

Human Authorship Requirement: In most jurisdictions, copyright laws typically require a human creator for a work to be eligible for protection. Since AI lacks legal personhood, the issue arises as to who (if anyone) owns the copyright for content generated by AI. Some argue that the programmer or the person who prompted the AI could own the copyright, while others contend that no one can claim ownership over AI-generated works.

Joint Authorship: Some believe that if a human significantly contributes to the creative process (e.g., by guiding the AI or editing the generated output), they could claim joint authorship. This raises questions about the degree of human involvement needed to establish ownership. How many modifications are needed for a work to be considered as joint authorship?

Use of Pre-Existing Content

Training Data and Copyright: Generative AI systems are typically trained on vast amounts of pre-existing data, which may include copyrighted material (e.g., books, articles, or images). If AI uses this data to create new content, it might generate works that resemble or directly draw from the copyrighted works, raising concerns about infringement.

Fair Use/Dealing Doctrine: Some jurisdictions may allow limited use of copyrighted material for purposes such as parody, commentary, or research, potentially providing a defense for AI-generated works. However, the boundaries of fair use are still being debated in the context of AI training and output.

Derivative Works

AI as a Tool for Creation: If AI generates content based on pre-existing copyrighted works (such as books and articles), the new work might be considered a derivative work. Creating a derivative work without the copyright holder's permission generally constitutes infringement, which could affect AI-generated books or book excerpts.

Substantial Similarity: Legal disputes may arise if AI-generated content bears substantial similarity to copyrighted works. Courts would need to determine whether the resemblance is coincidental or if it constitutes as infringement.

Creative Commons and Open Access

Public Domain and Licensing: Some creators are using AI to generate content and then release it under Creative Commons or other open licenses. This allows for broader sharing and use, but creators must clearly define the terms, especially when combining AI-generated and human-created elements.

Legal and Industry Responses

Lawsuits and Legal Precedents: There have been lawsuits filed over AI training data and generated content, particularly in the visual arts, which may set precedents affecting the book publishing industry. How courts rule in these cases will likely influence how book copyright and AI are addressed.

Regulatory Changes: Governments and regulatory bodies are starting to explore new frameworks to address the challenges posed by AI, which could lead to updates in copyright laws, such as new guidelines for AI-generated works or adjustments to existing fair use and derivative work doctrines.

Ethical and Moral Considerations

Credit and Attribution: Even if AI cannot hold copyright, there are growing concerns about the ethical implications of using AI to generate content without proper attribution or compensation to the original creators whose works were used to train the AI.

Market Impact: The increasing use of AI in creative industries like publishing may affect human authors, either by diminishing opportunities for original work or by flooding the market with AI-generated content, further complicating the business dynamics of book publishing.

We are already seeing the effects of generative AI on social media platforms, where creators are prompted to disclose if a post was generated by AI. It’s unclear if there are any repercussions for not disclosing this information, but with AI tools (like ChatGPT) already built into most post publishing platforms and search engines, the online world seems to encourage its use as a tool for creators. Generative AI also poses larger questions about creative society in general, prompting the writer’s strike in the summer of 2023.

Generative AI challenges traditional notions of copyright, and the law is currently in a state of flux regarding these issues. Legal frameworks are likely to evolve as AI technology advances and courts provide more clarity on ownership, infringement, and the permissible use of AI-generated content. The proposed Generative AI Copyright Disclosure Act of 2024 attempts to address this unease by introducing new transparency requirements for AI developers.

To legally copyright your work and register your book with the Library of Congress, visit loc.gov for more information.

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