The sleepy copyright agency is in the middle of a high-stakes clash over AI

For decades, the Copyright Office was a small and sleepy office within the Library of Congress. Every year, the agency's 450 employees register about half a million copyrights, the property rights for creative works, based on a two-century-old law.

However, in recent months the office was suddenly in the spotlight. Lobbyists from Microsoft, Google and the music and news industries have asked to meet with Shira Perlmutter, the copyright registry, and her staff. Thousands of artists, musicians and tech executives have written to the agency, and hundreds have asked to speak listening sessions hosted by the office.

The attention comes as the Copyright Office conducts a first-of-its-kind investigation into copyright law in the age of artificial intelligence. The technology – which feeds on creative content – ​​has upended traditional norms around copyright, giving owners of books, films and music the exclusive ability to distribute and copy their works.

The agency plans to release three reports this year revealing its position on copyright law regarding AI. The reports will have enormous consequences and weigh heavily in courts, as well as legislators and regulators.

“We're getting a lot of attention from the wider public now, so it's a very exciting and challenging time,” Ms Perlmutter said.

The Copyright Office's assessment has put it in the middle of a high-stakes clash between the tech and media industries over the value of intellectual property to train new AI models that are likely to create copyrighted books, news articles, songs, art and essays will record to generate writing texts or images. Since the 1790s, copyright law has protected works so that an author or artist can “reap the benefits of his or her intellectual creativity,” the Copyright Office explains on its website.

That law is now a subject of heated debate. Authors, artists, media companies and others say the AI ​​models infringe on their copyrights. Technology companies say they do not replicate the materials and that they use data that is publicly available on the Internet, practices that constitute fair use and are within the limits of the law. The battle has led to lawsuits, including one from The New York Times against ChatGPT maker OpenAI and Microsoft. And copyright owners are urging officials to rein in the tech companies.

“What the Copyright Office is doing is very important because it involves important legal principles and a lot of money,” said Rebecca Tushnet, a professor of copyright and intellectual property law at Harvard Law School. “Ultimately, the question is not whether these models will exist. It's about who gets paid.”

Congress created the Copyright Office in 1870 to register licenses for books, maps, essays, and other creative works and store those works for use by lawmakers in the Library of Congress. The first registration took place for the 'Philadelphia Spelling Book', a children's language book.

When Ms. Perlmutter, a veteran copyright officer and former intellectual property attorney for Time Warner, was appointed to lead the Copyright Office in late 2020, she promised to bring the office into the modern age by focusing on major technology trends. She drew inspiration from earlier leaders, who pursued technological innovations including the camera, records, Xerox machines, the Internet and music streaming, which required the agency to rethink how copyright law would apply and require Congress to advise on proposed updates to the law. .

AI immediately became a hot topic. Stephen Thaler, a computer scientist, attempted to copyright an AI-generated work of art by filing an application on the Copyright Office website. In 2019, the office rejected its first attempt to register the piece, a pixelated scene of train tracks running through a tunnel overgrown with shrubs and flowers, called “A Recent Entrance to Paradise.” In February 2022, Ms. Perlmutter refused his second attempt to register the piece on the same grounds: copyrights were only given to original works created by humans.

The decision – a first for an AI-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 AI companies used copyrighted material to train their systems.

In August, she opened the formal review of AI and copyright law. The agency said it would investigate whether the use of intellectual property to train AI models violated the law and would probe more deeply into whether machine-generated works could qualify for copyright protection. The agency said it would also investigate how AI tools created content that used the names, images and likenesses of individuals without their consent or compensation.

“The focus on AI is intense,” Ms. Perlmutter said in an interview. “Today's generative AI systems raise many complex copyright issues – some call them existential – that require us to really start grappling with fundamental questions about the nature and value of human creativity.”

Interest in the agency's overhaul was overwhelming. The agency solicited public comments on the topic and received more than 10,000 responses to a form on its website. A typical policy review produces no more than 20 responses, the agency said.

Tech companies argued in comments on the website that the way their models consumed creative content was innovative and legal. Venture capital firm Andreessen Horowitz, which has several investments in AI startups, warned in its comments that any delay for AI companies in consuming content would “disrupt investment-backed expectations based on current understanding for at least a decade.” of the scope of copyright protection in this country.”

OpenAI, Microsoft, Meta (Facebook's parent company) and Google are currently relying on a 2015 court ruling in a case brought by the Authors Guild.

The guild sued Google in 2005 for scanning books to use in snippets in search engine results and to share with libraries. A court ruled that Google had not violated copyright law. It said that scanning entire books was allowed because Google did not make the entire book available and that it was a “transformative” use of copyrighted material. Google relied on an exception to copyright law known as “fair use,” which allows limited replication of copyrighted material for things like criticism, parody or other transformational uses.

Google, Meta and the AI ​​startup Anthropic all repeated arguments from that case in their comments to the Copyright Office, including that AI copies the information to analyze data and not reuse it for creative works.

Authors, musicians and the media industry argued that the AI ​​companies were depriving them of their livelihoods by using their content without permission or licensing payments.

“The lack of consent and compensation in this process is theft,” Justine Bateman, actress and author of “Family Ties,” wrote in comments to the Copyright Office.

News Corp, publisher of The Wall Street Journal and The New York Post, implored the agency not to “lose sight of this simple truth: Protecting content creators is one of the core functions of copyright law.” (The Times also submitted a comment.)

Ms. Perlmutter said she and a staff of about 20 copyright lawyers went through every comment submitted to the office.

Yet the office may not offer a clear vision that will satisfy both tech companies and creative people.

“As technology becomes more sophisticated, the challenges become exponentially more difficult and the risks and rewards become exponentially greater,” said Ms. Perlmutter.