Disrupting Creativity: Copyright Law in the Age of Generative Artificial Intelligence
60 Pages Posted: 17 Aug 2022 Last revised: 28 Oct 2023
Date Written: August 8, 2022
Very recently, due largely to breakthroughs in deep learning technologies, AI has begun stepping into the shoes of human content generators and making valuable creative works at scale. Before the end of the decade, a significant amount of art, literature, music, software, and web content will likely be created by AI rather than traditional human authors. Yet the law, as it has so often historically, lags this technological evolution by prohibiting copyright protection for AI-generated works. The predominant narrative holds that even if AI can automate creativity, that this activity is not the right sort of thing to protect, and that protection could even harm human artists.
AI-generated works challenge beliefs about human exceptionalism and the normative foundations of copyright law, which until now have offered something for everyone. Copyright can be about ethics and authors and protecting the sweat of a brow and personality rights. Copyright can also be about the public interest and offering incentives to create and disseminate content. But copyright cannot have it all with AI authors—there is valuable output being generated, but by authors with no interests to protect.
This Article argues that American copyright law is, and has been traditionally, primarily about benefiting the public interest rather than benefiting authors directly. As a result, AI-generated works are precisely the sort of thing the system was designed to protect. Protection will encourage people to develop and use creative AI which will result in the production and dissemination of new works. Taken further, attributing authorship to AI when an AI has functionally done the work of a traditional author will promote transparency, efficient allocations of rights, and even counterintuitively protect human authors. AI-generated works also promise to radically impact other fundamental tenets of copyright law such as infringement, protection of style, and fair use. How the law should respond to AI activity has lessons more broadly for thinking about what rules should apply to people, machines, and other sorts of artificial authors.
Keywords: artificial intelligence, AI art, generative art, copyright law, intellectual property rights
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