Hogan Lovells 2024-2025 AI Trends Guide - Flipbook - Page 13
Issues, policy, and open areas of law
Whether training ingestion of copyrighted content is
permissible fair use to the arguably derivative nature of
generative-AI’s output to nuanced – and internationally
variable – registrability requirements for works created
utilizing generative AI, there can be no question that
generative AI is transforming the landscape of copyright
law. What are the issues at the forefront of AI copyright
law? And what should companies bear in mind as they
navigate this evolving landscape?
One headline issue surrounds whether the ingestion of
copyrighted material, absent permission, for the purposes
of training generative AI tools is an impermissible use under
copyright law that infringes the copyrights held in the
underlying material. In the US, several lawsuits including
class actions have been filed on these grounds, with fair use
defenses being asserted in response. These issues are live
before the courts and yet to be decided. In the EU, legislation
has already created a statutory text and datamining exception
which allows the use of copyrighted material for the purpose
of training generative AI in certain cases, unless the copyright
owner has reserved this right i.e. opted out for the material
to be used. However, it is yet to be clarified how this applies
in practice and how copyright owners can opt out of their
material being used. Additionally, the European AI-Act is
expected to enter into force in summer of 2024 and imposes
transparency obligations on AI providers to inform about the
AI-Training. The constantly new developments in the US and
in Europe should closely be followed by companies developing
and deploying generative AI.
Additional
resources
Authors
A second issue concerns whether, because of the way
generative AI models are trained, their output is an infringing
derivative of the copyrighted works they ingest. While any
risk will be circumstance and jurisdiction specific, including
with respect to the particular content ingested, commands
used and output generated, both generative AI developers and
users should be aware of the potential liabilities – including
direct and vicarious – associated with arguably infringing
generative AI output.
Third, copyright registrants and litigants are well advised
to stay abreast of the nuanced and evolving registrability
requirements for works involving generative AI, which are
likely to implicate copyright litigation more broadly. In
March 2023, the U.S. Copyright Office issued a statement
of policy applying a human authorship requirement for
copyrightability in setting forth a case-by-case approach
as to whether AI-generated content is eligible for copyright
protection, concluding that works created by generative AI in
response to human prompting do not. That policy statement
also requires that AI-generated material be disclosed
when applying for copyright registration, that previously
filed applications which do not disclose the use of AI be
corrected, and that supplemental registrations identifying
and disclaiming any AI generated material contained within
previously registered works be filed. These human authorship
and registration requirements, combined with varying
registrability policies in other Berne Convention jurisdictions,
are likely to give rise to significant avenues for discovery and
attacks on validity in copyright litigation moving forward.
Webinar
Generative AI and IP: A New Era of Intellectual Property
Issues and Practical Strategies to Address Them
Samantha Brinkhuis
Partner
Amsterdam
Anna Kurian Shaw
Partner
Washington, D.C.
Morten Petersenn
Partner
Hamburg
Lauren Cury
Counsel
Washington, D.C.
Alastair Shaw
Counsel
London
Whei Hsueh
Senior Associate
San Francisco
