On January 29, 2025, the U.S. Copyright Office issued part two of it's report on Artificial Intelligence ("AI") which addresses the topic of “copyrightability” as it relates to AI. This report follows an extensive initiative by the Copyright Office, which included public consultations, educational webinars, and a Notice of Inquiry (NOI) that garnered over 10,000 comments from a diverse range of stakeholders.

Technological and Legal Background

The report begins by outlining the technological advancements in AI, particularly generative AI, which can produce text, images, audio, and video outputs based on user inputs or "prompts." It then reviews the existing legal framework, emphasizing the requirement for human authorship in copyright law. The Copyright Clause in the U.S. Constitution and the Copyright Act both necessitate that a work must be created by a human to be eligible for copyright protection.

Human Contribution and AI-Generated Outputs

The report categorizes human contributions to AI-generated outputs into three main types, which each relate to the degree of human interaction with an AI model that resulted in an output for which copyright protection may be sought.

Prompts: The report concludes that, given current technology, prompts alone do not provide sufficient human control to make users the authors of AI-generated outputs. Prompts are seen as instructions that convey unprotectible ideas rather than controlling the expressive elements of the output.

Expressive Inputs: When a human author inputs their own copyrightable work into an AI system and that work is perceptible in the output, the human author retains copyright over their contribution. This is akin to the protection given to derivative works, where copyright extends to the human-authored elements.

Modifications or Arrangements: Human authors can claim copyright if they creatively select, coordinate, and arrange AI-generated material. This includes combining human-authored text with AI-generated images or making significant modifications to AI-generated content.

International Approaches

The report also examines how other countries are addressing the copyrightability of AI-generated material. Most jurisdictions, including South Korea, Japan, China, and the European Union, agree that copyright requires human authorship. Some countries, like the United Kingdom, have specific provisions for computer-generated works, but their applicability to AI-generated content remains uncertain.

Arguments for Legal Change

The report evaluates arguments for and against extending copyright protection to AI-generated material. Proponents argue that such protection would incentivize the creation of more works, while opponents contend that it would undermine human creativity and flood the market with low-quality AI-generated content. The report concludes that existing legal doctrines are adequate and that there is no need for additional protection for AI-generated material.

Key Takeaways

Human Authorship Requirement: The report reaffirms that copyright protection in the U.S. requires human authorship. AI-generated material without sufficient human contribution is not eligible for copyright.

Prompts and Control: Current AI technology does not allow users to exert enough control over the expressive elements of AI-generated outputs through prompts alone to claim authorship.

Expressive Inputs and Modifications: Human authors can retain copyright over their contributions when they input their own work into AI systems or make significant modifications to AI-generated content.

International Consensus: There is a growing international consensus that copyright requires human authorship, although some countries have unique provisions for computer-generated works.

No Need for Legislative Change: The report concludes that existing copyright law is flexible enough to address the challenges posed by AI-generated content and that there is no need for new legislation or sui generis rights.

Conclusion

The U.S. Copyright Office's report provides a comprehensive analysis of the copyrightability of AI-generated outputs, emphasizing the necessity of human authorship and the adequacy of existing legal frameworks to address these issues. The Office will continue to monitor technological and legal developments and provide ongoing guidance to the public, including through release of the third part of this report.