Generative AI: Legal Framework And Navigating Copyright Compliance in the Creative Industry

Artificial intelligence (AI) is causing a stir in the digital world, and discussions about how AI will change the way we live and do business are no longer mere speculations; they are here, already happening, and show no signs of slowing down any time soon. Perhaps no industry has felt the boisterous impact of generative AI more than the creative industry, as ChatGPT, the brainchild of Microsoft-backed Open AI, took the world by storm in the early parts of this year, quickly becoming the fastest online service to reach 1 million users, overtaking the likes of Instagram, Facebook, Netflix, Dropbox, and Airbnb along the way.

Since then, the number of generative AI tools and products has skyrocketed, threatening to upend the creative industry’s status quo. As expected, some well-known artists and creators have spoken out against the use of generative AI. While some believe that generative AI can coexist alongside creatives and even help bolster their creative process,

Consider the music industry, which has a global annual revenue of $26.2 billion as of this writing, with the United States being the largest music market within. This industry has seen a significant influx of generative AI tools that are being adopted by creators and music executives with the goal of speeding up music creation. An intriguing foray into YouTube and Tiktok yields a slew of AI-created covers and beats that are nearly impossible to tell apart from the original. With all of this going on, it begs the question, “What are the legal frameworks around the use of generative AI?” To answer this question, consider the legal safeguards available to creatives:

Intellectual Property Rights and Copyright:

The ownership of generated content is one of the primary legal concerns surrounding generative AI in the creative industry. Copyright, according to Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law, “protects works of authorship, such as written content, illustrations, photographs, videos, and musical compositions, from the moment they are fixed in a tangible medium, and it vests in those authors certain exclusive rights, including the ability to control reproductions and displays.”

Typically, copyright protection is granted to human creators, but when AI systems produce creative works autonomously, questions arise about who owns the rights to those works. In many jurisdictions, copyright law protects original works that are fixed in a tangible medium. When AI is involved, however, the concept of authorship becomes hazy, as in the case of “Zarya of the Dawn” author Kris Kashtanova, whose copyright registration for the images in her recently released graphic novel was revoked because they were created using the AI system Midjourney. Kris and her legal team, on the other hand, argued that the images generated by Midjourney were the result of Kris “exerting creative control” over the image-generating tool, and thus the output should be “protectable.”

On the one hand, while copyright laws protect creators, they may also stifle progress in the field of generative AI. Pamela Samuelson offers a unique perspective on this issue, claiming that “copyright law is the only law that’s already in existence that could bring generative AI systems to their knees. If the court says ingesting [is] infringement, the whole thing can be destroyed. Copyright law is an existential threat to progress in this field,”

There is currently no universally accepted method for determining copyright ownership of AI-generated works. Some argue that because the AI system is only a tool and lacks human creativity, the resulting works should not be protected by copyright. Others argue that the author should be considered the person who trained or provided the dataset to the AI system. However, these points of view are still being debated and may differ depending on jurisdiction.

Legal Solutions and Challenges:

Some countries have begun exploring potential solutions to the legal issues surrounding generative AI. For example, the Copyright Office in the United States has stated that it will not register works “that are not the product of human authorship.”

Letter from the U.S. Copyright Office (PDF file).

This stance implies that unless there is human involvement in the creative process, AI-generated works may not receive formal copyright protection.

The European Union, on the other hand, has taken a different approach. The European Parliament passed the Copyright Directive in 2019, which includes provisions that grant legal protection to AI-generated works. AI-generated works are eligible for copyright protection under this directive if they demonstrate the author’s own intellectual creation. This definition, however, raises concerns about the level of human-like creativity required for legal protection.

Despite these efforts to address the legal issues, a number of issues remain. Determining the level of human intervention required for AI-generated works to be eligible for copyright protection, for example, is subjective. Identifying the original source of data or styles used by generative AI systems can also be difficult, especially when they are trained on large datasets from multiple sources. 

Ethical Considerations Regarding The Use Of Generative AI

Beyond the legal implications, generative AI raises ethical concerns. Prominent critics of generative AI have legitimate concerns about how the data used to feed and train the AI was obtained.

Navigating Copyright Compliance in the Creative Industry with Generative AI

It is critical for creators and businesses to understand and comply with current copyright laws as they harness the power of generative AI. Here are a few actions to take and guidelines to follow when working with generative AI in the creative industry.

Familiarize Yourself with Copyright Laws

It is crucial to have a thorough understanding of the copyright laws in your country in order to ensure compliance. Learn about the rules, restrictions, and exceptions that apply to copyright protection in the law. Keep abreast of any recent judicial decisions or legislative changes that may have an effect on the use of generative AI in the creative process.

Assess Ownership and Authorship:

A critical aspect of copyright compliance is determining ownership and authorship of AI-generated works. Although current laws may not explicitly address AI-generated content, the following factors should be considered:

(a). Human Intervention: Evaluate the level of human involvement in the creative process. In general, works involving significant human creativity and decision-making are more likely to be granted copyright protection. Ensure that human input is used in the generative AI system’s selection, training, and guidance.

(b). Originality: Original works are frequently granted copyright protection. While AI systems learn from existing data, they should strive to create content that deviates significantly from the input and reflects unique creative choices.

(c). Agreements and Contracts: In agreements and contracts with AI developers, artists, and other parties involved, clearly define ownership and authorship. Outline each party’s rights and responsibilities, as well as the use, distribution, and modification of AI-generated works.

Seek Permission and Licenses

Ask for the necessary permissions and licenses before using any third-party copyrighted materials in the training data or creating any works that were inspired by such content. This holds true for any other copyrighted materials used in the generative AI process, including any audio, video, text, or image references. Ascertain compliance with fair use or fair dealing provisions, as necessary, by taking into account elements like purpose, nature, amount, and market impact.

Attribution and Moral Rights

Respect the moral and attribution rights of the original authors. Recognize the contributions of any specific artists or creators whose work your generative AI system resembles. Give credit where credit is due, give proper attribution, and respect creators’ moral rights by preventing the use of AI-generated works in ways that might damage their reputation.

Monitor and Address Biases

Biases present in training data may unintentionally be amplified by generative AI systems. Take proactive measures to keep an eye out for and address any biases that may appear in content produced by AI. Review and assess the output of the system frequently, look for and remove any offensive or discriminatory material, and aim for inclusivity and diversity in all of your creative endeavors.

Educate and Train Stakeholders

By educating and preparing those involved in the generative AI process, you can encourage copyright compliance within your organization. Educate people about ethical issues, copyright laws, and best practices. Promote the use of AI responsibly and a culture of respect for intellectual property rights.

 Consult Legal Professionals

Consult legal experts with knowledge of intellectual property and technology law given the dynamic nature of copyright laws as they relate to generative AI. They can guide you through complex legal issues and offer advice that is customized to your particular situation.

The production of content is being revolutionized by generative AI in ways we have never seen before. The legal frameworks governing these AI-generated works, however, are still developing and face many difficulties. You must take precautions to ensure that you abide by current copyright laws and stay current on potential future laws in order to avoid getting your business entangled in this web of uncertainty and causing it to disappear from the internet.