In the 2020s, the rapid advancement of deep learning-based generative artificial intelligence models are raising questions about whether copyright infringement occurs when the generative AI is trained or used. This includes text-to-image models such as Stable Diffusion and large language models such as ChatGPT. As of 2023, there are several pending U.S. lawsuits challenging the use of copyrighted data to train AI models, with defendants arguing that this falls under fair use. [1]
Popular deep learning models are trained on mass amounts of media scraped from the Internet, often utilizing copyrighted material. [2] When assembling training data, the sourcing of copyrighted works may infringe on the copyright holder's exclusive right to control reproduction, unless covered by exceptions in relevant copyright laws. Additionally, using a model's outputs might violate copyright, and the model creator could be accused of vicarious liability and held responsible for that copyright infringement.
Since most legal jurisdictions only grant copyright to original works of authorship by human authors, the definition of "originality" is central to the copyright status of AI-generated works. [3]
In the U.S., the Copyright Act protects "original works of authorship". [4] The U.S. Copyright Office has interpreted this as being limited to works "created by a human being", [4] declining to grant copyright to works generated without human intervention. [5] Some have suggested that certain AI generations might be copyrightable in the U.S. and similar jurisdictions if it can be shown that the human who ran the AI program exercised sufficient originality in selecting the inputs to the AI or editing the AI's output. [5] [4]
Proponents of this view suggest that an AI model may be viewed as merely a tool (akin to a pen or a camera) used by its human operator to express their creative vision. [4] [6] For example, proponents argue that if the standard of originality can be satisfied by an artist clicking the shutter button on a camera, then perhaps artists using generative AI should get similar deference, especially if they go through multiple rounds of revision to refine their prompts to the AI. [7] Other proponents argue that the Copyright Office is not taking a technology neutral approach to the use of AI or algorithmic tools. For other creative expressions (music, photography, writing) the test is effectively whether there is de minimis, or limited human creativity. For works using AI tools, the Copyright Office has made the test a different one i.e. whether there is no more than de minimis technological involvement. [8]
This difference in approach can be seen in the recent decision in respect of a registration claim by Jason Matthew Allen for his work Théâtre D'opéra Spatial created using Midjourney and an upscaling tool. The Copyright Office stated:
The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence ("AI"), and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted. [9]
As AI is increasingly used to generate literature, music, and other forms of art, the U.S. Copyright Office has released new guidance emphasizing whether works, including materials generated by artificial intelligence, exhibit a 'mechanical reproduction' nature or are the 'manifestation of the author's own creative conception'. [10] The U.S. Copyright Office published a Rule in March 2023 on a range of issues related to the use of AI, where they stated:
...because the Office receives roughly half a million applications for registration each year, it sees new trends in registration activity that may require modifying or expanding the information required to be disclosed on an application.
One such recent development is the use of sophisticated artificial intelligence ("AI") technologies capable of producing expressive material. These technologies "train" on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user's textual instruction, called a "prompt."
The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as "generative AI," raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them. [11]
The U.S. Patent and Trademark Office (USPTO) similarly codified restrictions on the patentability of patents credits solely to AI authors in February 2024, following an August 2023 ruling in the case Thaler v. Perlmutter. In this case, the Patent Office denied grant to patents created by Stephen Thaler's AI program, DABUS due to the lack of a "natural person" on the patents' authorship. The U.S. Court of Appeals for the Federal Circuit upheld this decision. [12] [13] In the subsequent rule-making, the USPTO allows for human inventors to incorporate the output of artificial intelligence, as long as this method is appropriately documented in the patent application. [14] However, it may become virtually impossible as when the inner workings and the use of AI in inventive transactions are not adequately understood or are largely unknown. [13]
Representative Adam Schiff proposed the Generative AI Copyright Disclosure Act in April 2024. If passed, the bill would require AI companies to submit copyrighted works to the Register of Copyrights before releasing new generative AI systems. These companies would have to file these documents 30 days before publicly showing their AI tools. [15]
Other jurisdictions include explicit statutory language related to computer-generated works, including the United Kingdom's Copyright, Designs and Patents Act 1988, which states:
In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. [6]
However, the computer generated work law under UK law relates to autonomous creations by computer programs. Individuals using AI tools will usually be the authors of the works assuming they meet the minimum requirements for copyright work. The language used for computer generated work relates, in respect of AI, to the ability of the human programmers to have copyright in the autonomous productions of the AI tools (i.e. where there is no direct human input):
In so far as each composite frame is a computer generated work then the arrangements necessary for the creation of the work were undertaken by Mr Jones because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer program. In these circumstances I am satisfied that Mr Jones is the person by whom the arrangements necessary for the creation of the works were undertaken and therefore is deemed to be the author by virtue of s.9(3) [16]
The UK government has consulted on the use of generative tools and AI in respect of intellectual property leading to a proposed specialist Code of Practice: [17] "to provide guidance to support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections on generated output to support right holders of copyrighted work". [18] The U.S. Copyright Office recently published a notice of inquiry and request for comments following its 2023 Registration Guidance. [19]
On November 27, 2023, the Beijing Internet Court issued a decision recognizing copyright in AI-generated images in a litigation. [20]
As noted by a lawyer and AI art creator, the challenge for intellectual property regulators, legislators and the courts is how to protect human creativity in a technologically neutral fashion whilst considering the risks of automated AI factories. AI tools have the ability to autonomously create a range of material that is potentially subject to copyright (music, blogs, poetry, images, and technical papers) or other intellectual property rights (patents and design rights). [8]
Deep learning models source large data sets from the Internet such as publicly available images and the text of web pages. The text and images are then converted into numeric formats the AI can analyze. A deep learning model identifies patterns linking the encoded text and image data and learns which text concepts correspond to elements in images. Through repetitive testing, the model refines its accuracy by matching images to text descriptions. The trained model undergoes validation to evaluate its skill in generating or manipulating new images using only the text prompts provided after the training process. [21] Because assembling these training datasets involves making copies of copyrighted works, this has raised the question of whether this process infringes the copyright holder's exclusive right to make reproductions of their works.
U.S. machine learning developers have traditionally believed this to be allowable under fair use because using copyrighted work is transformative, and limited. [22] The situation has been compared to Google Books's scanning of copyrighted books in Authors Guild, Inc. v. Google, Inc. , which was ultimately found to be fair use, because the scanned content was not made publicly available, and the use was non-expressive. [23]
Timothy B. Lee, in Ars Technica , argues that if the plaintiffs succeed, this may shift the balance of power in favour of large corporations such as Google, Microsoft, and Meta which can afford to license large amounts of training data from copyright holders and leverage their proprietary datasets of user-generated data. [24] IP scholars Bryan Casey and Mark Lemley argue in the Texas Law Review that datasets are so large that "there is no plausible option simply to license all [of the data...]. So allowing [any generative training] copyright claim is tantamount to saying, not that copyright owners will get paid, but that the use won't be permitted at all." [25] Other scholars disagree; some predict a similar outcome to the U.S. music licensing procedures. [22]
Several jurisdictions have explicitly incorporated exceptions allowing for "text and data mining" (TDM) in their copyright statutes including the United Kingdom, Germany, Japan, and the EU. Unlike the EU, the United Kingdom prohibits data mining for commercial purposes but has proposed this should be changed to support the development of AI: "For text and data mining, we plan to introduce a new copyright and database exception which allows TDM for any purpose. Rights holders will still have safeguards to protect their content, including a requirement for lawful access." [26] As of June 2023, a clause in the draft EU AI Act would require generative AI to "make available summaries of the copyrighted material that was used to train their systems". [27]
In some cases, deep learning models may "memorize" specific details of items in their training set, and replicate them when generating new content, such that the outputs may be considered copyright infringement. This behaviour is generally considered a form of overfitting by AI developers and it is uncertain how prevalent this behaviour is in current systems.
OpenAI argued that "well-constructed AI systems generally do not regenerate, in any nontrivial portion, unaltered data from any particular work in their training corpus". [4] Under U.S. law, to prove that an AI output infringes a copyright, a plaintiff must show the copyrighted work was "actually copied", meaning that the AI generates output which is "substantially similar" to their work, and that the AI had access to their work. [4]
In the course of learning to statistically model the data on which they are trained, deep generative AI models may learn to imitate the distinct style of particular authors in the training set. Since fictional characters enjoy some copyright protection in the U.S. and other jurisdictions, an AI may also produce infringing content in the form of novel works which incorporate fictional characters. [4] [28]
A generative image model such as Stable Diffusion is able to model the stylistic characteristics of an artist like Pablo Picasso (including his particular brush strokes, use of colour, perspective, and so on), and a user can engineer a prompt such as "an astronaut riding a horse, by Picasso" to cause the model to generate a novel image applying the artist's style to an arbitrary subject. However, an artist's overall style is generally not subject to copyright protection. [4]
Anthropic PBC is a U.S.-based artificial intelligence (AI) startup public-benefit company, founded in 2021. It researches and develops AI to "study their safety properties at the technological frontier" and use this research to deploy safe, reliable models for the public. Anthropic has developed a family of large language models (LLMs) named Claude as a competitor to OpenAI's ChatGPT and Google's Gemini.
Music and artificial intelligence (AI) is the development of music software programs which use AI to generate music. As with applications in other fields, AI in music also simulates mental tasks. A prominent feature is the capability of an AI algorithm to learn based on past data, such as in computer accompaniment technology, wherein the AI is capable of listening to a human performer and performing accompaniment. Artificial intelligence also drives interactive composition technology, wherein a computer composes music in response to a live performance. There are other AI applications in music that cover not only music composition, production, and performance but also how music is marketed and consumed. Several music player programs have also been developed to use voice recognition and natural language processing technology for music voice control. Current research includes the application of AI in music composition, performance, theory and digital sound processing.
OpenAI is an American artificial intelligence (AI) research organization founded in December 2015 and headquartered in San Francisco, California. Its mission is to develop "safe and beneficial" artificial general intelligence, which it defines as "highly autonomous systems that outperform humans at most economically valuable work". As a leading organization in the ongoing AI boom, OpenAI is known for the GPT family of large language models, the DALL-E series of text-to-image models, and a text-to-video model named Sora. Its release of ChatGPT in November 2022 has been credited with catalyzing widespread interest in generative AI.
Artificial intelligence art is visual artwork created through the use of an artificial intelligence (AI) program.
DALL·E, DALL·E 2, and DALL·E 3 are text-to-image models developed by OpenAI using deep learning methodologies to generate digital images from natural language descriptions known as "prompts".
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Midjourney is a generative artificial intelligence program and service created and hosted by the San Francisco–based independent research lab Midjourney, Inc. Midjourney generates images from natural language descriptions, called prompts, similar to OpenAI's DALL-E and Stability AI's Stable Diffusion. It is one of the technologies of the AI boom.
Stable Diffusion is a deep learning, text-to-image model released in 2022 based on diffusion techniques. The generative artificial intelligence technology is the premier product of Stability AI and is considered to be a part of the ongoing artificial intelligence boom.
A text-to-image model is a machine learning model which takes an input natural language description and produces an image matching that description.
ChatGPT is a chatbot and virtual assistant developed by OpenAI and launched on November 30, 2022. Based on large language models (LLMs), it enables users to refine and steer a conversation towards a desired length, format, style, level of detail, and language. Successive user prompts and replies are considered at each conversation stage as context.
Prisma Labs is a software company based in Sunnyvale, California that is known for developing Prisma and Lensa.
In the field of artificial intelligence (AI), a hallucination or artificial hallucination is a response generated by AI which contains false or misleading information presented as fact. This term draws a loose analogy with human psychology, where hallucination typically involves false percepts. However, there is a key difference: AI hallucination is associated with erroneous responses or beliefs rather than perceptual experiences.
Generative artificial intelligence is artificial intelligence capable of generating text, images, videos, or other data using generative models, often in response to prompts. Generative AI models learn the patterns and structure of their input training data and then generate new data that has similar characteristics.
The AI boom, or AI spring, is an ongoing period of rapid progress in the field of artificial intelligence (AI) that started in the late 2010s before gaining international prominence in the early 2020s. Examples include protein folding prediction led by Google DeepMind and generative AI applications developed by OpenAI.
Théâtre D'opéra Spatial is an image created by Jason Michael Allen with the generative artificial intelligence platform Midjourney. The image won the 2022 Colorado State Fair's annual fine art competition in the photomanipulation category on September 5, becoming one of the first AI-generated images to win such a prize.
Kelly McKernan is an American artist based in Nashville, Tennessee.
Runway AI, Inc. is an American company headquartered in New York City that specializes in generative artificial intelligence research and technologies. The company is primarily focused on creating products and models for generating videos, images, and various multimedia content. It is most notable for developing the commercial text-to-video and video generative AI models Gen-1, Gen-2 and Gen-3 Alpha.
Suno AI, or simply Suno, is a generative artificial intelligence music creation program designed to generate realistic songs that combine vocals and instrumentation, or are purely instrumental. Suno has been widely available since December 20, 2023, after the launch of a web application and a partnership with Microsoft, which included Suno as a plugin in Microsoft Copilot.
Stability AI is an artificial intelligence company, best known for it's text-to-image model Stable Diffusion.
Udio is a generative artificial intelligence model that produces music based on simple text prompts. It can generate vocals and instrumentation. Its free beta version was released publicly on April 10, 2024. Users can pay to subscribe monthly or annually to unlock more capabilities such as audio inpainting.