For decades, the Copyright Office has been a small and sleepy office within the Library of Congress. Each year, the agency’s 450 employees register roughly half a million copyrights, the ownership rights for creative works, based on a two-centuries-old law.
In recent months, however, the office has suddenly found itself in the spotlight. Lobbyists for Microsoft, Google, and the music and news industries have asked to meet with Shira Perlmutter, the register of copyrights, and her staff. Thousands of artists, musicians and tech executives have written to the agency, and hundreds have asked to speak at listening sessions hosted by the office.
The attention stems from a first-of-its-kind review of copyright law that the Copyright Office is conducting in the age of artificial intelligence. The technology — which feeds off creative content — has upended traditional norms around copyright, which gives owners of books, movies and music the exclusive ability to distribute and copy their works.
The agency plans to put out three reports this year revealing its position on copyright law in relation to A.I. The reports are set to be hugely consequential, weighing heavily in courts as well as with lawmakers and regulators.
“We are now finding ourselves the subject of a lot of attention from the broader general public, so it is a very exciting and challenging time,” Ms. Perlmutter said.
The Copyright Office’s review has thrust it into the middle of a high-stakes clash between the tech and media industries over the value of intellectual property to train new A.I. models that are likely to ingest copyrighted books, news articles, songs, art and essays to generate writing or images. Since the 1790s, copyright law has protected works so an author or artist “may reap the fruits of his or her intellectual creativity,” the Copyright Office declares on its website.
That law is now a topic of hot debate. Authors, artists, media companies and others say the A.I. models are infringing on their copyrights. Tech companies say that they aren’t replicating the materials and that they consume data that is publicly available on the internet, practices that are fair use and within the bounds of the law. The fight has led to lawsuits, including one by The New York Times against the ChatGPT creator OpenAI and Microsoft. And copyright owners are pushing for officials to rein in the tech companies.
“What the Copyright Office is doing is a big deal because there are important principles of law and lots and lots of money involved,” said Rebecca Tushnet, a professor of copyright and intellectual property law at Harvard Law School. “At the end of the day, the issue is not whether these models will exist. It’s who will get paid.”
Congress created the Copyright Office in 1870 to register licenses for books, maps, essays and other creative works and store those works for the use of lawmakers at the Library of Congress. The first registration was given to the “Philadelphia Spelling Book,” a children’s language book.
When Ms. Perlmutter, a veteran copyright official and former intellectual property lawyer for Time Warner, was appointed to lead the Copyright Office in late 2020, she promised to bring the office into the modern era by focusing on big tech trends. She took inspiration from previous leaders, who dealt with technological innovations including the camera, records, Xerox machines, the internet and streaming music, all of which required the office to weigh in on how copyright would apply and advise Congress on proposed updates to the law.
Right away, A.I. became a hot topic. Stephen Thaler, a computer scientist, tried to register an A.I.-generated art piece for a copyright by submitting an application on the Copyright Office’s website. In 2019, the office rejected his first attempt to register the piece, a pixelated scene of train tracks running through a tunnel overgrown with brush and flowers called “A Recent Entrance to Paradise.” In February 2022, Ms. Perlmutter declined his second attempt to register the piece on the same grounds: Copyrights were given only to original works created by humans.
The decision — a first on an A.I.-produced work — set an important precedent. Artists and lawmakers flooded Ms. Perlmutter’s office with emails and phone calls asking her to also intervene in the way A.I. companies were using copyrighted material to train their systems.
In August, she opened the formal review of A.I. and copyright law. The office said it would examine whether the use of intellectual property to train A.I. models violated the law and would look more deeply into whether machine-generated works could be eligible for copyright protections. The office said it would also review how A.I. tools were creating content that used the names, images and likenesses of individuals without their consent or compensation.
“The attention on A.I. is intense,” Ms. Perlmutter said in an interview. “The current generative A.I. systems raise a lot of complicated copyright issues — some have called them existential — that really require us to start grappling with fundamental questions about the nature and value of human creativity.”
The interest in the office’s review was overwhelming. The office solicited public comments on the topic and received more than 10,000 responses on a form on its website. A typical policy review gets no more than 20 comments, the office said.
Tech companies argued in comments on the website that the way their models ingested creative content was innovative and legal. The venture capital firm Andreessen Horowitz, which has several investments in A.I. start-ups, warned in its comments that any slowdown for A.I. companies in consuming content “would upset at least a decade’s worth of investment-backed expectations that were premised on the current understanding of the scope of copyright protection in this country.”
OpenAI, Microsoft, Meta (Facebook’s parent) and Google are currently relying on a 2015 court decision in a case filed by the Authors Guild.
The guild sued Google in 2005 for scanning books to use in excerpts in its search engine results and to share with libraries. A court ruled that Google had not violated copyright law. It said that the scanning of entire books was permissible because Google didn’t make the full book available and that it was “transformative” use of copyrighted material. Google relied on an exemption to copyright law known as “fair use” that allows limited replication of copyrighted material for things like criticism, parody or other transformational uses.
Google, Meta and the A.I. start-up Anthropic all echoed arguments from that case in their comments to the Copyright Office, including that A.I. copies the information to analyze data, not repurpose it for creative works.
Authors, musicians and the media industry argued that by taking their content without permission or licensing payments, the A.I. companies were robbing them of their livelihoods.
“The absence of consent and compensation in this process is theft,” Justine Bateman, the “Family Ties” actress and author, wrote in comments to the Copyright Office.
News Corp, which publishes The Wall Street Journal and The New York Post, implored the office to “not lose sight of this simple truth: Protecting content creators is one of copyright law’s core missions.” (The Times also submitted a comment.)
Ms. Perlmutter said she and a staff of about two dozen copyright lawyers were going through each comment filed to the office.
Still, the office may not offer clear-cut views that will satisfy either the tech companies or creative people.
“As technology gets more and more sophisticated, the challenges are exponentially more difficult and the risks and rewards are exponentially greater,” Ms. Perlmutter said.
Audio produced by Sarah Diamond.
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