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| Sara Farr Guy |
To begin, let’s look at what is copyrightable. The key criteria for copyrightable works include originality, fixation and human authorship. Pursuant to 17 U.S. Code § 102, the work must be independently created and possess a minimal degree of creativity (originality); the work must be fixed in a tangible medium of expression, meaning it exists in a physical or digital form that can be perceived, reproduced or communicated (fixation); and the work requires human authorship.
It is noteworthy that copyright has been enshrined in U.S. law since the country’s inception. The first federal copyright statute was enacted by Congress in 1790, and it has been periodically revised to adapt to evolving societal and technological changes.
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According to the U.S. Copyright Office, “Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher.”
Content that is produced by GenAI presents several legal issues concerning copyrights, namely whether such content can be considered eligible for copyright protection.
In Thaler v. Perlmutter, the court held that works generated autonomously by a computer system without any human involvement are not eligible for copyright protection. This decision underscores the necessity of human authorship for copyright eligibility, as required by the Copyright Act.
There are growing concerns about the unauthorized use of copyrighted materials in training generative AI models. In Tremblay v. OpenAI, Inc., the plaintiffs accused OpenAI of using their copyrighted works to train ChatGPT without permission, raising issues under the Copyright Act. Similarly, in Raw Story Media, Inc. v. OpenAI, Inc., the plaintiffs argued that their copyrighted content was used without proper attribution, allegedly violating the Digital Millennium Copyright Act.
While generative AI holds immense potential, it also presents complex legal challenges, particularly in determining copyright eligibility, addressing unauthorized use of copyrighted materials, and ensuring ethical compliance for legal professionals.
In legal practice, when utilizing AI-assisted technology in legal documents, lawyers in the U.S. must adhere to key considerations in order to ensure compliance with ethical and legal standards. These include disclosing the use of AI in any legal filings, and retaining full responsibility for the accuracy, relevance and compliance of AI-generated materials. Given the potential for AI to produce inaccuracies, all AI-generated content must be thoroughly reviewed before submission. Failure to disclose AI use or to verify the accuracy of AI-generated information may result in court-imposed sanctions, underscoring the importance of careful oversight in legal practice.
As GenAI continues to reshape content creation, publishers must grapple with the evolving legal landscape surrounding copyright protection. While AI presents opportunities for efficiency and innovation, it also raises pressing concerns about the ownership and integrity of creative works. Publishers navigating this shift must ensure their use of AI aligns with copyright laws, emphasizing human authorship and safeguarding original content from unauthorized reproduction.
The ongoing legal discourse — ranging from court rulings on AI-generated works to disputes over training data — reinforces the necessity of maintaining strong copyright protections in an era increasingly shaped by artificial intelligence.
Sara Farr Guy is an editor with LexisNexis North America.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is neither intended to be nor should be taken as legal advice.
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