Generative AI systems generate written and visual works based on the data —other texts and images—they have been trained on. Until the advent of generative AI, the rights regarding works of authorship have been ably governed by copyright law and copyleft principles. This new technology is, however, forcing a rethink about how the law should apply to generative AI-produced works.
Regarding the output: it currently appears to be accepted law that copyright law only protects works created by a person—nonhuman animals and computer-generated works receive no copyright. Should human-generated prompts input into a generative AI system be deemed sufficient "creative control" over the work, and thus a basis for recognizing authorship in the human prompting the system? The closer parallel for a "prompt" would seem to be providing "general directions" or "an idea", such that the output would, in the US at least if certain other criteria are met, be a "work for hire." At present, with no human at the receiving end of the request, however, no rights accrue. As the round peg of generative AI meets the square hole of copyright law, a new approach may be necessary.
How about the input: how should copyright law apply to the works that generative AI systems have been trained on? Meaning, is training generative AI systems with copyrighted works an infringement, and if royalties are due, how should payments be allocated for use of copyrighted works? Lawsuits have already been brought by owners of software code, picture databases, books and music. Two views are emerging; one in support of a single upfront fee to use the materials to train the system, the other suggesting that each generative AI work should pay royalties back to the rightsholders whose works "inspired" the output. Neither approach, however, seems to provide a universally applicable solution. Great care and creativity will be needed to navigate the paradigm shift to a world with both human works and AI-generated output.
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