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著作権関連記事~最新記事/注目記事~
『AIによって生成される作品は著作権によって保護されるか』2023/4/28
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
Copyright Registration Guidance: Works Containing
Material Generated by Artificial Intelligence
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Statement of policy.
SUMMARY: The Copyright Office issues this statement
of policy to clarify its practices for examining and registering works that
contain material generated by the use of artificial intelligence technology.
DATES: This statement of policy is effective March
16, 2023.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis,
Assistant to the General Counsel, by email at meft@copyright.gov or telephone at 202–707–8350.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Office (the ‘‘Office’’) is the Federal agency tasked with
administering the copyright registration
system, as well as advising Congress, other
agencies, and the Federal judiciary on copyright and related matters.
Because the Office has overseen copyright
registration since its origins in 1870, it has developed substantial
experience and expertise regarding ‘‘the distinction between copyrightable and non-copyrightable works.’’ The Office is empowered by the Copyright Act to establish the
application used by applicants seeking registration of their copyrighted works.
While the Act identifies certain minimum requirements, the Register may
determine that additional information is necessary for the Office to evaluate
the ‘‘existence, ownership, or duration of the
copyright.’’ 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.
These are no longer hypothetical questions, as the
Office is already receiving and examining applications for registration that
claim copyright in AI-generated material. For example, in 2018 the Office
received an application for a visual work that the applicant described as ‘‘autonomously created by a computer algorithm running on a machine.’’ The application was denied because, based on the applicant’s representations in the application, the examiner found that the
work contained no human authorship. After a series of administrative appeals,
the Office’s Review Board issued a final determination
affirming that the work could not be registered because it was made ‘‘without any creative contribution from a human actor.’’
More recently, the Office reviewed a registration
for a work containing human-authored elements combined
with AI-generated images. In February 2023, the
Office concluded that a graphic novel comprised of human-authored text combined
with images generated by the AI service Midjourney constituted a copyrightable
work, but that the individual images themselves could not be protected by
copyright.
The Office has received other applications that have
named AI technology as the author or co-author of the work or have included
statements in the ‘‘Author Created’’ or ‘‘Note to Copyright Office’’ sections of the application indicating that the work was produced
by or with the assistance of AI. Other applicants have not disclosed the
inclusion of AI-generated material but have mentioned the names of AI
technologies in the title of the work or
the ‘‘acknowledgments’’ section of the deposit.
Based on these developments, the Office concludes
that public guidance is needed on the registration of works
containing AI-generated content. This statement of
policy describes how the Office applies copyright law’s human-authorship requirement to applications to register such
works and provides guidance to applicants.
The Office recognizes that AI-generated works
implicate other copyright issues not addressed in this statement. It has
launched an agency-wide initiative to delve into a wide range of these issues.
Among other things, the Office intends to publish a notice of inquiry later
this year seeking public input on additional legal and policy topics, including
how the law should apply to the use of copyrighted works in AI training and the
resulting treatment of outputs.
II. The Human Authorship Requirement
In the Office’s view, it is
well-established that copyright can protect only material that is the product
of human creativity. Most fundamentally, the term ‘‘author,’’ which is used in both the Constitution and the Copyright Act,
excludes non-humans. The Office’s registration policies
and regulations reflect statutory and judicial guidance
on this issue.
In its leading case on authorship, the Supreme Court
used language excluding non-humans in interpreting Congress’s constitutional power to provide ‘‘authors’’ the exclusive right to their ‘‘writings.’’ In Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of
making unauthorized copies of a photograph argued that the expansion of
copyright protection to photographs by Congress was unconstitutional because ‘‘a photograph is not a writing nor the production of an author’’ but is instead created by a camera. The Court disagreed, holding
that there was ‘‘no doubt’’ the
Constitution’s Copyright Clause permitted photographs
to be subject to copyright, ‘‘so far as they are
representatives of original intellectual conceptions of the author.’’ The Court defined an ‘‘author’’ as ‘‘he to whom anything owes its origin;
originator; maker; one who completes a work of science or literature.’’ It repeatedly referred to such ‘‘authors’’ as human, describing authors as a class of ‘‘persons’’ and a copyright as ‘‘the exclusive right of a man to the production of his own genius or
intellect.’’
Federal appellate courts have reached a similar
conclusion when interpreting the text of the Copyright Act, which
provides copyright protection only for ‘‘works of authorship.’’ The Ninth Circuit has
held that a book containing words ‘‘authored by
non-human spiritual beings’’ can only qualify for
copyright protection if there is ‘‘human selection and
arrangement of the revelations.’’ In another case, it
held that a monkey cannot register a copyright in photos it captures with a
camera because the Copyright Act refers to an author’s ‘‘children,’’ ‘‘widow,’’ ‘‘grandchildren,’’ and ‘‘widower,’’—terms that ‘‘all imply humanity and necessarily exclude animals.’’
Relying on these cases among others, the Office’s existing registration guidance has long required that works
be the product of human authorship. In the 1973
edition of the Office’s Compendium of Copyright Office
Practices, the Office warned that it would not register materials that did not ‘‘owe their origin to a human agent.’’
The second edition of the Compendium, published in
1984, explained that the ‘‘term ‘authorship’ implies that, for a work to be copyrightable, it must owe its
origin to a human being.’’ And in the current edition
of the Compendium, the Office states that ‘‘to qualify
as a work of ‘authorship’ a
work must be created by a human being’’ and that it ‘‘will not register works produced by a machine or mere mechanical
process that operates randomly or automatically without any creative input or
intervention from a human author.’’
III. The Office’s
Application of the Human Authorship Requirement
As the agency overseeing the copyright registration
system, the Office has extensive experience in evaluating works submitted for registration
that contain human authorship combined with uncopyrightable material, including
material generated by or with the assistance of technology. It begins by asking
‘‘whether the ‘work’
is basically one of human authorship, with the computer [or other device]
merely being an assisting instrument, or whether the traditional elements of
authorship in the work (literary, artistic, or musical expression or elements
of selection, arrangement, etc.) were actually conceived and executed not by
man but by a machine.’’ In the case of works containing
AI-generated material, the Office will consider whether the AI contributions
are the result of ‘‘mechanical reproduction’’ or instead of an author’s ‘‘own original mental conception, to which [the author] gave visible
form.’’ The answer will depend on the circumstances,
particularly how the AI tool operates and how it was used to create the final
work. This is necessarily a case-by-case inquiry.
If a work’s traditional
elements of authorship were produced by a machine, the work lacks human
authorship and the Office will not register it. For example, when an AI
technology receives solely a prompt from a human and produces complex written,
visual, or musical works in response, the ‘‘traditional
elements of authorship’’ are determined and executed by
the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently
available, users do not exercise ultimate creative control over how such
systems interpret prompts and generate material. Instead, these prompts
function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the
machine determines how those instructions are implemented in its output. For
example, if a user instructs a text-generating technology to ‘‘write a poem about copyright law in the style of William
Shakespeare,’’ she can expect the system to generate
text that is recognizable as a poem, mentions copyright, and resembles
Shakespeare’s style. But the technology will decide the
rhyming pattern, the words in each line, and the structure of the text. When an
AI technology determines the expressive elements of its output, the generated
material is not the product of human authorship. As a result, that material is
not protected by copyright and must be disclaimed in a registration
application.
In other cases, however, a work containing
AI-generated material will also contain sufficient human authorship to support
a copyright claim.
For example, a human may select or arrange
AI-generated material in a sufficiently creative way that ‘‘the
resulting work as a whole constitutes an original
work of authorship.’’ Or an artist may modify material
originally generated by AI technology to such a degree that the modifications
meet the standard for copyright protection. In these cases, copyright will only
protect the human-authored aspects of the work, which are ‘‘independent of’’ and do ‘‘not affect’’ the copyright status of the
AI-generated material itself.
This policy does not mean that technological tools
cannot be part of the creative process. Authors have long
used such tools to create their works or to recast,
transform, or adapt their expressive authorship. For example, a visual artist
who uses Adobe Photoshop to edit an image remains the author of the modified
image, and a musical artist may use effects such as guitar pedals when creating
a sound recording.
In each case, what matters is the extent to which
the human had creative control over the work’s expression and
‘‘actually formed’’ the
traditional elements of authorship.
IV. Guidance for Copyright Applicants
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 Act, 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.’’
A. How To Submit Applications for Works Containing
AI-Generated Material
Individuals who use AI technology in creating a work
may claim copyright protection for their own contributions to that work. They
must use the Standard Application, and in it identify the author(s) and provide
a brief statement in the ‘‘Author Created’’ field that describes the authorship that was contributed by a
human. For example, an applicant who incorporates AIgenerated text into a
larger textual work should claim the portions of the textual
work that is human-authored. And an applicant who
creatively arranges the human and non-human content within a work should fill
out the ‘‘Author Created’’ field to
claim: ‘‘Selection, coordination, and arrangement of
[describe human-authored content] created by the
author and [describe AI content] generated by artificial intelligence.’’ Applicants should not list an AI technology or the company that
provided it as an author or co-author simply because they used it when creating
their work.
AI-generated content that is more than de minimis
should be explicitly excluded from the application. This may be done in the ‘‘Limitation of the Claim’’ section in the ‘‘Other’’ field, under the ‘‘Material Excluded’’ heading.
Applicants should provide a brief description of the
AI-generated content, such as by entering ‘‘[description of
content] generated by artificial intelligence.’’ Applicants may also provide additional information in the ‘‘Note to CO’’ field in the Standard
Application.
Applicants who are unsure of how to fill out the
application may simply provide a general statement that a work
contains AI-generated material. The Office will
contact the applicant when the claim is reviewed and determine
how to proceed. In some cases, the use of an AI tool
will not raise questions about human authorship, and the Office will explain
that nothing needs to be disclaimed on the application.
B. How To Correct a Previously Submitted or Pending
Application
Applicants who have already submitted applications
for works containing AI-generated material should check that the information
provided to the Office adequately disclosed that material. If not, they should
take steps to correct their information so that the registration remains
effective.
For applications currently pending before the
Office, applicants should contact the Copyright Office’s Public Information Office and report that their application
omitted the fact that the work contained AI-generated material.
Staff will add a note to the record, which the
examiner will see when reviewing the claim. If necessary, the examiner then
will correspond with the applicant to obtain additional information about the
nature of the human authorship included in the work.
For applications that have already been processed
and resulted in a registration, the applicant should correct the public record
by submitting a supplementary registration. A supplementary registration is a
special type of registration that may be used ‘‘to correct
an error in a copyright registration or to amplify the information given in a
registration.’’
In the supplementary registration, the applicant
should describe the original material that the human author
contributed in the ‘‘Author
Created’’ field, disclaim the AI-generated material in
the ‘‘Material Excluded/Other’’
field, and complete the ‘‘New Material Added/Other’’ field. As long as there is sufficient human authorship, the Office
will issue a new supplementary registration certificate with a disclaimer
addressing the AI-generated material.
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.
V. Conclusion
This policy statement sets out the Office’s approach to registration of works containing material generated by
AI technology. The Office continues to monitor new
factual and legal developments involving AI and copyright and may issue
additional guidance in the future related to registration or the other
copyright issues implicated by this technology.
* * * * *
Dated: March 10, 2023.
Shira Perlmutter,
Register of Copyrights and Director of the U.S.
Copyright Office.
[FR Doc. 2023–05321 Filed 3–15–23; 8:45 am]
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