Creation and Generation Copyright Standards

60 Pages Posted: 30 Apr 2024 Last revised: 28 May 2024

See all articles by Danny Friedmann

Danny Friedmann

Peking University School of Transnational Law

Date Written: February 24, 2024

Abstract

There is a de facto double standard in copyright eligibility. Despite the insistence of the U.S. Copyright Office (Office) that copyright law is applied consistently to all subject matter, in practice the user of AI-generated images needs to meet an unattainably high standard. This includes that the author had a fully formed conception and total control over the creation of the work, beyond time and space, which this author calls the “platonic” ideals of copyright. The authors of traditional works, such as paintings and photos often do not have to meet this standard.

This article contrasts the Office’s rejections of copyright protection for AI-generated images with the Beijing Internet Court’s approval, highlighting a global debate on copyright eligibility to AI-generated products versus traditional expressive works. The article is the first one that critiques both stances for overlooking creativity’s inherent unpredictability, authorial spontaneity, and the notion that at some level fine-grained ideas become expressions, and advocates for a policy that counterbalances human and AI contributions to artistic, literary, and musical works.

Instead of replacing the “double standard” with a unified standard, this article proposes a dual standard: one for human-created works; and a different one for AI-assisted products. Therefore, it is important that artists disclose the part of the work generated by AI. But equally significant is that providers of AI-services make a database of generated AI-products available to the Office, so that it will be able to compare the applications for copyright registration with those products generated by AI, to see whether the human intervention meets the threshold and originality. Until this is possible, there should be a moratorium on the protection of AI-generated products via copyright law or a sui generis right. In turn, and to balance the promotion of innovation and creativity, the Office should make available registered copyrighted works and the metadata of their authors that can be used as training data for AI-service providers, so that they have the metadata to compensate these authors. This author recommends preferential treatment to human authors to avert or at least slow down the dilution of human culture.

Keywords: generative artificial intelligence, copyright eligibility standards, platonic standard of copyright, U.S. Copyright Office, Beijing Internet Court, preferential treatment for human authors, Large Language Models, metadata, training data, originality, fixation

JEL Classification: K00, K11, K19, K20, K29, K30, K39, K40, K49, B25, B29, D49, D60, D63, D18, J00

Suggested Citation

Friedmann, Danny, Creation and Generation Copyright Standards (February 24, 2024). NYU Journal of Intellectual Property & Entertainment Law, forthcoming 2024, Peking University School of Transnational Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4770924 or http://dx.doi.org/10.2139/ssrn.4770924

Danny Friedmann (Contact Author)

Peking University School of Transnational Law ( email )

Peking Univ. Shenzhen Campus
University Town, Xili, Nanshan District
Shenzhen, 518055
China

HOME PAGE: http://stl.pku.edu.cn/faculty-2/danny-friedmann/

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
197
Abstract Views
471
Rank
300,938
PlumX Metrics