Aff - Generative AI Copyright - MSDI 2024

MSDI Generative AI Copyright AFF
1AC – Generative AI
Inherency
AI’s rapid development is already blurring lines between human and machine creations, copyright law hasn’t caught up
Peukert and Windisch 2024. Christian Peukert Faculty of Business and Economics, University of Lausanne, Lausanne, Switzerland And Margaritha Windisch Department of Humanities, Social and Political Sciences, ETH Zürich, Zurich, Switzerland. “The economics of copyright in the digital age” Wiley Journal of Economic Surveys. 2024. <https://onlinelibrary.wiley.com/doi/pdf/10.1111/joes.12632> Accessed 7/5/23. ARJSH
In the past few years, the perhaps most striking innovation developments regarding copyright and the creation of new content have taken place with generative AI (Samuelson, 2023). Recent advances in ML have opened up new possibilities to produce literary, musical, and artistic works, and AI has become a new tool to express ideas for hundreds of millions of users. The applications are many and vary across the creative domains. For example, WaveNet was initially developed to help a ML algorithm create seamless artificial voices and has learned to make music itself by analyzing voice material. Current AI systems can also quickly create customized royalty-free background music, jungles, and even entire albums. Also, some video game environments are no longer created by programmers but by the program itself based on predetermined rules and algorithms (e.g., in No Man’s Sky). In visual art, machines can emulate human thought and decide how to alter an image based on a given algorithm. With AI art generators, such as DALL-E, Stable Diffusion, and Midjourney, users can create artwork by entering a prompt, choosing different styles, and further modifying the generated outputs to express their ideas. As the technology is reaching a point where it is difficult to distinguish works created by humans from works generated with AI (Jakesch et al., 2023), the importance of human influence on creative works is put to the test. At present, AI-generated works are not protected by copy- right in most jurisdictions because of the missing human input.“Human authorship” is seen as the guiding principle in copyright law (Hristov, 2016; Ramalho, 2017). Consequently, these works directly enter the public domain. The ongoing development of AI and its ability to make critical, creative decisions either with or without human intervention gives us reason to rethink our understanding of originality and ownership and evolve copyright law. When no protection is granted, the output generated by AI might be considered fair use of the underlying processing and recombination of training data (Sag, 2024). Since the AI is doing much more than copying bits and pieces of existing works and is creating new works based on the techniques learned from studying the copyrighted prior work, much like an art student learns to paint in particular styles by studying existing artwork in that style. However, output substantially similar to original works might still be copyright infringing, giving rise to the technical issue of “memorization” (Sag, 2023a). The case of a song that uses AI-generated voices of the popular artists “Drake & The Weeknd” released in 2023 further highlights a dilemma of online copyright enforcement for platforms. Under pressure from the record label that released the artists’ original works, streaming plat- forms such as Spotify and YouTube removed the song, citing copyright infringement. Given the legal uncertainty, accepting such infringement claims is tricky for Google, which is YouTube’s par- ent organization and a leader in the development of AI. As discussed in Patel (2023), by agreeing with the record label and treating AI-generated music as copyright infringing, Google endangers its own development of generative AI products (which may have much broader applications) under the fair use argument. On the other hand, by not agreeing with the record label, they risk lawsuits and potentially lose necessary licenses for music on YouTube, one of the biggest content categories. Even in countries where AI-generated work is protected by copyright, for example, in the UK, it is not clear who the author of the output is—several eligible personas come into question, such as the architect, the programmer or the user of the model, who have each contributed necessary input for the final work to be created. Depending on whether copyright protection for AI-generated works is granted has further implications on the question of potential copyright infringement regarding the training data, making it more likely that copying original images for training data is legal because the resulting AI software is used to create new, non-infringing artwork
Plan
Plan: The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights by enacting legislation recognizing the protectability of works generated by artificial intelligence
Solvency
Plan supercharges the creative possibilities in both copyright and AI and revitalizes copyright law
Myers 2023. Gary Myers, Professor of Law, University of Missouri School of Law. “The Future is Now: Copyright Protection for Works Created by Artificial Intelligence” Texas Law Review Online Volume 102 | 2023 <https://texaslawreview.org/wp-content/uploads/2023/10/Myers.10.2.23.FINAL_-2.pdf> Accessed 7/6/25. ARJSH
In analyzing this policy and legal question, there is value in taking a comparative law approach in order to assess how other nations have addressed this important question for the future and present state of copyright law. This article proposes that the United States rule should follow the UK approach. Under the United Kingdom’s Copyright, Designs and Patents Act 1988 (the “CDPA”), there is protection for a category of computer-generated works, that is, those generated by a computer “in circumstances such that there is no human author of the work.”89Section 9(3) of the CDPA provides that the author of a computer-generated literary, dramatic, musical or artistic work, “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”90 Although some countries follow the current U.S. approach of declining to protect AI-generated content,91 a number of jurisdictions are finding ways to offer such works copyright protection, including Japan, Ireland, New Zealand, and South Africa.92 It is clear that many common law countries, with more flexible legal frameworks, have anticipated the coming tide of AI growth. It is unclear how the EU and China will eventually resolve this question.93 A rule similar to that in the UK should be adopted in the near future for AI-generated works. This law would provide incentives for the creation and development of AI technology and for the implementation and use of that technology to generate new creative works. This interpretation would make copyright protection for computer-generated works subject to the same requirements that other works must meet. Thus, the work must meet the minimum standard of originality recognized in Feist. It must be independently created by the AI technology (and thus not copied from another source). It must not consist of ineligible subject matter (such as ideas, facts, words, short phrases, scènes à faire, and the like). Copyright protection for AI-generated works would subsist for the same term currently given to works made for hire, which is 95 years from the date of publication or 120 years from the date of creation, whichever comes first. The long-term question—what happens if and more likely when AI technology equals or exceeds human creativity—is no longer merely hypothetical, though it remains unpredictable and futuristic. But it is certainly not beyond the realm of possibility that this situation will arise, and that it will occur more quickly than knowledgeable observers anticipated even a few years ago. If and when it does, one legal solution would be to have the treatment of AI-generated works essentially track the treatment of AI entities themselves. In other words, if they are given legal recognition and status similar to that of human beings, then by right, they would be entitled to the protections of copyright law. In the United States, this result could be accomplished by legislation (likely part of the overall legal status law), by court decisions interpreting the copyright laws, or by an interpretation of the Equal Protection Clause of the Fifth and Fourteenth Amendments. Conclusion In conclusion, the treatment of AI-generated works will continue to vex the courts, the Copyright Office, and Congress. Meanwhile, developments in AI technology will continue to expand the nature and types of works that can be created using AI. Society has already reached the point at which the Turing test—whether AI works are indistinguishable from human creations—has been satisfied. AI-generated content is clearly already as good as—and sometimes better than—many human-produced works. It is, therefore, appropriate for either the courts to interpret the current Copyright Act to encompass AI-generated works or for Congress to enact legislation specifically recognizing their protectability. AI is developing and progressing at such a rapid rate that copyright law will need to adapt and catch up to the reality that creativity is no longer only a human sphere of activity.
AI development means increasingly involved human interaction in generative AI models, locating copyrights in that human interaction is key to promote copyright’s true intent, the promotion and dissemination of ideas.
Lemley 2024. Mark A. Lemley. William H. Neukom Professor, Stanford Law School. “HOW GENERATIVE AI TURNS COPYRIGHT UPSIDE DOWN” T H E C O L U M B I A SCIENCE & TECHNOLOGY LAW REVIEW VOLUME 25 SPRING 2024. Accessed 7/1.24 ARJSH
Ensuring that copyright doesn’t protect ideas is not just embedded in the case law and the Copyright Act. It is a fundamental part of what makes copyright law constitutional. Along with the fair use defense, the Supreme Court tells us the idea- expression dichotomy prevents copyright from treading on the First Amendment And it ensures that copyright “promotes the progress of science” by letting people learn and reuse the ideas expressed.20 Indeed, if there are only a limited number of ways to express a particular idea, copyright denies all protection rather than risk fencing the idea in.21 That system worked well in a world where the expression of ideas was hard, and was therefore the thing copyright needed to encourage. No one should be entitled to own the idea of a painting of a comet appearing over the beach at sunset. But everyone is free to express that idea in their own way, and the variations in how they express the basic idea is the stuff of copyright. The hard work of creation— actually painting the brushstrokes, making the individual choices of color, shading and composition that bring the painting to life—the artist gets to own.22 AI automates much of that formerly hard work. I can ask Dall-E or Midjourney to generate a painting of a comet appearing over the beach at sunset and it will take care of the rest in seconds. If I want more specificity, I can ask it to vary what is in the background, or to change the colors, or to render it in a particular style, and it will adapt the painting accordingly. I have to come up with the basic idea and tell it what I want. But the AI does the bulk of the work that copyright traditionally exists to reward. Dall-E 3 will even turn my basic request into a better prompt in order to give you better images.23 And this isn’t just true of paintings. ChatGPT writes text for you. It will even develop plot devices and characters to fit the parameters of a story you give it. Song AIs are taking off, some generating AI covers of existing songs but others writing entirely new songs that feel and sound like the songs of existing artists—or even ones that feel entirely new. So it’s not just the literal elements of the work, but even many of the non-literal elements of the work, that are contributed by the AI. The result is that, increasingly, the things humans contribute in a collaboration with generative AI will be ideas and high-level concepts. AI will contribute the expression. That turns copyright law upside down. Perhaps it means that the AI should be treated as the copyright author, though as noted above current law doesn’t permit that, and none of the AI companies seem to be pushing for copyright ownership in the expression they generate. Or perhaps it means that no one owns the copyright in AI-generated works: prompters don’t own the ideas they contribute and AIs can’t own the expression they contribute. That might make sense as a policy matter—it is not obvious that generative AI needs the incentive of copyright law—but it is unlikely to be politically sustainable. The instinct Rochelle Dreyfuss has derided as “if value then right”24 is quite strong, and I suspect that as the works AI generates become more valuable people and companies will rush in to claim ownership of them. The most common and most plausible answer, I think, seeks to locate creativity not in the generation of outputs from AI but in the human structuring of the prompts that produce those outputs.25 On this theory, Midjourney or Dall-E might generate an original work of art, but it does so in response to specific instructions from the user. While some instructions are simple, often those instructions are iterated, with users refining the questions they ask ChatGPT/large language models or the directions they give image generation AIs until they get the output they are looking for.26 Sometimes they get it right the first time, but users will sometimes engage in “prompt engineering,” going through dozens of refinements to coax an AI to produce just the right output. And there is strong evidence that the way the prompt is phrased or refined can fundamentally influence the output of foundation models.27 Indeed, companies are now hiring “prompt engineers” with the skill of asking the right questions.28 And “jailbreaking” limits on chatbots by asking questions the right way has become a sport in Silicon Valley.
Providing a mechanism for recognizing AI authorship is critical to jumpstarting new creative possibilities and spur investment and development of AI
Guadamuz 2017. Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom “Artificial intelligence and copyright” WIPO Magazine October 2017. P.14-19 <https://www.wipo.int/edocs/pubdocs/en/wipo_pub_121_2017_05.pdf> Accessed 7/4/25. ARJSH
But with the latest types of artificial intelligence, the computer program is no longer a tool; it actually makes many of the decisions involved in the creative process without human intervention. COMMERCIAL IMPACT One could argue that this distinction is not important, but the manner in which the law tackles new types of machine-driven creativity could have far-reaching commercial implications. Artificial intelligence is already being used to generate works in music, journalism and gaming. These works could in theory be deemed free of copyright because they are not created by a human author. As such, they could be freely used and reused by anyone. That would be very bad news for the companies selling the works. Imagine you invest millions in a system that generates music for video games, only to find that the music is not protected by law and can be used without payment by anyone in the world. While it is difficult to ascertain the precise impact this would have on the creative economy, it may well have a chilling effect on investment in automated systems. If developers doubt whether creations generated through machine learning qualify for copyright protection, what is the incentive to invest in such systems? On the other hand, deploying artificial intelligence to handle time-consuming endeavors could still be justified, given the savings accrued in personnel costs, but it is too early to tell. LEGAL OPTIONS There are two ways in which copyright law can deal with works where human interaction is minimal or non-existent. It can either deny copyright protection for works that have been generated by a computer or it can attribute authorship of such works to the creator of the program. To my knowledge, conferring copyright in works generated by artificial intelligence has never been specifically prohibited. However, there are indications that the laws of many countries are not amenable to non-human copyright. In the United States, for example, the Copyright Office has declared that it will “register an original work of authorship, provided that the work was created by a human being.” This stance flows from case law (e.g. Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991)) which specifies that copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Similarly, in a recent Australian case (Acohs Pty Ltd v Ucorp Pty Ltd), a court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human. In Europe the Court of Justice of the European Union (CJEU) has also declared on various occasions, particularly in its landmark Infopaq decision (C-5/08 Infopaq International A/S v. Danske Dagbaldes Forening), that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.” This is usually understood as meaning that an original work must reflect the author’s personality, which clearly means that a human author is necessary for a copyright work to exist. The second option, that of giving authorship to the programmer, is evident in a few countries such as the Hong Kong (SAR), India, Ireland, New Zealand and the UK. This approach is best encapsulated in UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), which states: “In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” Furthermore, section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”. The idea behind such a provision is to create an exception to all human authorship requirements by recognizing the work that goes into creating a program capable of generating works, even if the creative spark is undertaken by the machine. ADDRESSING AMBIGUITY This leaves open the question of who the law would consider to be the person making the arrangements for the work to be generated. Should the law recognize the contribution of the programmer or the user of that program? In the analogue world, this is like asking whether copyright should be conferred on the maker of a pen or the writer. Why, then, could the existing ambiguity prove problematic in the digital world? Take the case of Microsoft Word. Microsoft developed the Word computer program but clearly does not own every piece of work produced using that software. The copyright lies with the user, i.e. the author who used the program to create his or her work. But when it comes to artificial intelligence algorithms that are capable of generating a work, the user’s contribution to the creative process may simply be to press a button so the machine can do its thing. There are already several text-generating machine learning programs out there, and while this is an ongoing area of research, the results can be astounding. Stanford PhD student Andrej Karpathy taught a neural network how to read text and compose sentences in the same style, and it came up with Wikipe

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