Copyright Office makes disclosure of machine-generated content a duty in every registration application

2023-03-16Copyright

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023) (statement of policy, effective Mar. 16, 2023), signed by Shira Perlmutter, Register of Copyrights

The United States Copyright Office published a statement of policy, effective on publication, on registering works that contain material generated by artificial intelligence. It restates that "copyright can protect only material that is the product of human creativity" and recounts the Zarya of the Dawn cancellation. The policy states that where a system "receives solely a prompt" from a human, the traditional elements of authorship "are determined and executed by the technology—not the human user"; prompts "function more like instructions to a commissioned artist," and "the machine determines how those instructions are implemented in its output." Human selection or arrangement of machine output, or modification of it, can be protected where the resulting work or the modifications meet the standard for authorship, and protection then covers only "the human-authored aspects of the work." Procedurally, "applicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration," to describe the human contribution in the "Author Created" field, and not to list the system or its vendor as an author. Pending applications must be corrected through the Public Information Office; already registered works require a supplementary registration. Omitted or questionable information may lead the Office to cancel the registration, and under Section 411(b) of Title 17 of the United States Code a court may disregard a registration obtained with knowingly inaccurate information.

What it changesA duty to disclose machine contribution now exists in one federal intellectual property registration system, with cancellation and loss of enforcement as the penalties for silence. The patent side has no such rule, but the Patent and Trademark Office opened a request for comments a month ago asking whether applicants should explain the contributions artificial intelligence systems made to a claimed invention, and this policy is the nearest template. The in-house response is to run the invention disclosure record now as if the duty existed: for each disclosure, which tools were used, what they produced, and which human decisions turned the output into the claimed invention. The same record answers the inventorship question under Thaler v. Vidal and protects the declaration against a later inequitable conduct theory. On the copyright side, any registration the company holds for software, documentation or marketing content made with generative tools needs review for a supplementary filing, because the policy reaches existing registrations.