Impact on Intellectual Property Rights

"The entities using the datasets to create a generative AI system rarely, if ever, have permission or license from the creators and owners of artistic works to use them. In fact, many artists have openly stated that they do not want their work going into systems that may make them obsolete. There is serious and ongoing debate over whether generative AI tools should be permitted to use protected works without a license. Some argue that such use constitutes fair use, an exception to some copyright protections with a very limited scope of application. Fair use often depends on the use of copyrighted material. For instance, a research or non-profit group using the content may have a better fair use claim than a company intending to sell the work generated using the original work. The extent to which fair use may apply to generative AI is still unsettled law."

"End-users of generative AI have already attempted to claim ownership over the outputs of generative AI tools, including several who have attempted to file for copyrights with the United States Copyright Office. The rising use of generative AI to create creative works and subsequent copyright filing attempts has been significant enough to prompt the Copyright Office to launch a new AI initiative. Statements from the U.S. Copyright Office so far have mandated that a work cannot receive copyright protections unless it contains “creative contribution from a human actor,” noting that copyright may only protect material that is “the product of human creativity.” While some have argued that the prompt constitutes sufficient “human creativity” to result in IP protections for the resulting work, the Copyright Office disagrees, comparing a prompt to “instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how these instructions are implemented in its output.” This distinction becomes more complex when a portion of the work is AI-generated and a portion is human-generated. Copyright may be applied to work that contains or builds off AI-generated work, but the copyright will apply solely to the human-authored aspects.