On Friday, the Authors Guild filed comments with the U.S. Patent and Trademark Office concerning developments in the field of artificial intelligence and the ramifications for authors. What might seem to be a distant, futuristic scenario—of machines authoring books, songs, and works of art—is, in fact, already here. We use some of these “creative” or “generative” artificial intelligence–powered tools—autocomplete in email composers and grammar checks for instance—in our everyday lives, and more sophisticated tools with the ability to compose prose, music, and paintings that substitute human-authored works are on the horizon.

The Brave New World of AI Authors

These mind-bending new technologies raise an important question: Should works created by AI be copyrightable? A long line of cases going back over a hundred years defines authorship exclusively as the product of human intellect. We underscore this principle and the rationale for it in our comments—copyright is meant to incentivize and protect human creators. We argue that copyright law should stay this way and that works created by artificial intelligence, without any human involvement, should be excluded from copyright protection. The more challenging question has to do with the degree of human intervention required to claim copyright in a work created with the aid of an artificial intelligence system. This question cannot be answered without knowing the specific technology involved, but we offer some suggestions in our comments for thinking about possible scenarios.

As these technologies get better at creating substitutes of human-authored works like novels and songs, and as their use becomes more common, they will compete with and possibly squeeze out many human-authored works. This is a very real and imminent risk for many sectors of the creative industries. As we point out in our comments: “The result will not just be one more disruption in the workforce; we will be a much poorer society because those AI-created works, no matter their superficial similarity to works of human provenance, will lack the experience and emotion of the human artist.”

High Risk of Copyright Infringement

Not only do AI systems threaten to replace many kinds of human authors (for instance, copywriters and content writers), they also create a large risk of mass copyright infringement. Under current law, creators of AI systems that are used for mass copyright infringement are not liable for the consequences in many cases. Moreover, AI systems learn by ingesting large volumes of copyrighted material—a process that may include making unauthorized copies—and several court cases including Authors Guild v. Google, which involved Google’s ingestion of over 4 million books, have excused such mass copying as fair use. However, the specific issue of ingesting books in order to write new ones hasn’t come before a court—although many in the tech sector are advocating for an outright exemption to permit use of any copyrighted works for AI purposes, and it is quite possible that a court could extend existing fair use law to allow ingestion for purposes of writing new books as well. We need to amend current law to make sure that does not happen. 

You can read our full comments below.