The U.S. Copyright Office has released the second installment of what is envisioned as a three-part report on copyright and artificial intelligence. The most recent release addresses the issue of “copyrightability of outputs generated by AI systems.” Its recommendations are based on the comments the Copyright Office received after it posted a Notice of Inquiry in August 2023 seeking public input on the full range of copyright issues raised by AI.

The notice drew more than 10,000 comments, including responses from authors, libraries, and publishers. Approximately half the comments addressed copyrightability in particular, with the vast majority of commenters agreeing that “existing law is adequate in this area and that material generated wholly by AI is not copyrightable.” There were differences, however, on how much use of AI in creating new works should be allowed without making a work ineligible for copyright protection.

Based on an analysis of copyright law and policy and comments from the public, the Copyright Office made the following conclusions and recommendations:

  • Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
  • The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output
  • Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material
  • Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements
  • Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis
  • Based on the functioning of current generally available technology, prompts do not alone provide sufficient control
  • Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs
  • The case has not been made for additional copyright or sui generis protection for AI generated content

The first part of the report was published in 2024 and addressed the topic of digital replicas—the use of digital technology to realistically replicate an individual’s voice or appearance. The final part will turn to the training of AI models on copyrighted works, licensing considerations, and allocation of any liability.