AIPLA Comments to USPTO on Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation

AIPLA submitted these comments in response to the Department of Commerce’s Request regarding issues related to copyright, trademark, and other intellectual property rights impacted by artificial intelligence innovation. 

1. Should a work produced by an AI algorithm or process, without the involvement of a natural person contributing expression to the resulting work, qualify as a work of authorship protectable under U.S. copyright law?

AIPLA believes a work produced without the involvement of a natural person should not be copyrightable, and that use of an AI algorithm or process should not change the fundamental requirement that authorship is limited to a natural person(s) or, in the case of a work made for hire, the employer of a natural person(s).

2. Assuming involvement by a natural person is or should be required, what kind of involvement would or should be sufficient so that the work qualifies for copyright protection?

No. A work produced without the involvement of a natural person should not be copyrightable. Under current U.S. copyright law, the hypothetical would result in an “authorless” work that is not protectable by copyright because no human being is involved in the resulting work. AIPLA believes that use of an AI algorithm or process should not change the fundamental requirement that authorship is limited to a natural person(s) or, in the case of a work made for hire, the employer of a natural person(s).

3. Assuming involvement by a natural person is or should be required, what kind of involvement would or should be sufficient so that the work qualifies for copyright protection?

Contribution of protectable expression to the AI-created work should be required. Given the many different types of AI algorithms and processes and the many different applications thereof, evaluation of the existence and degree of protectable expression by a natural person to a work made using in whole or in part an AI algorithm will require case-by-case consideration. 

4. To the extent an AI algorithm or process learns its function(s) by ingesting large volumes of copyrighted material, does the existing statutory language (e.g., the fair use doctrine) and related case law adequately address the legality of making such use?

Each AI input scenario would have to be analyzed contextually, it is possible that use of copyrighted material as training materials may constitute fair use depending on the nature of the materials used and how they are used. Fair use issues are not clearly addressed or resolved in the existing statutory framework. Additional guidance is needed whether unauthorized derivative works are being created by the AI, and, whether the use of copyrighted materials as training materials is “transformative.”