Generative AI and Copyright: Protection and Infringement of Inputs to and Outputs from the “Black Box”
Dr. Christian E. Mammen, J.D., D.Phil.
Partner, Womble Bond Dickinson
With the release and explosive growth of generative AI platforms this year, many copyright-related questions have arisen. Some questions relate to the use of existing materials as part of the massive datasets used to train the large language models (LLMs) of generative AI. Other questions relate to the outputs from generative AI platforms: Are they copyrightable? How much human participation is needed to establish copyrightability? How does one determine whether a generative AI output infringes existing copyrights, and who is the infringer? Should there be expanded protection of moral rights, rights of publicity, and name-image-likeness protections to cover AI-generated mimicry? Developing answers to these questions requires wide-ranging consideration of issues, incliding copyright law as part of economic policy, individual economic incentives, the future and pace of innovation, as well as more fundamental questions about the extent to which copyright law should be aimed at protecting human creativity. The debate also involves competing visions of the AI-fueled future—will AIs contribute to a utopian or dystopian path—and how quickly that future is arriving.
Dr. Mammen speaks and writes frequently on AI and IP issues. Some recent publications and presentations include:
• Drew Schwartz, “Drake or Fake? A Lawyer Explains the Legality of AI-Generated Music,” VICE (Apr. 2023)
• “AI and IP: Copyright and the New Frontiers of Generative AI, and Can AI Algorithms be Patent Inventors?” Oregon State Bar, Section of Intellectual Property (May 2023)
• “AI as Inventor,” chapter in Larry Di Matteo ed., The Cambridge Handbook of Artificial Intelligence (Cambridge University Press, 2022)
• “AI as Inventor,” Intellectual Property Scholars Conference, Stanford University, (Aug. 2022)
• “AI Inventor’s Status in the United States: Where Future Technology and IP Law is Headed,” Joint International Conference of 4th Industrial Revolution Convergence Law Association, Korea Institute of Intellectual Property, and Kyungsung University Law Research Institute (Korea (Zoom), Feb. 2022)
• “AI and Inventorship,” IPO Patent Litigation Committee (Oct. 2021)
• “Artificial Intelligence and IP Law: Are Creativity and Invention Inherently Human Activities?,” Cornell Law School digital continuing legal education program (September 2021)
• “National competitiveness and AI as a patent inventor—does it make a difference?” Berkeley Center for Law & Technology Expert Podcast (Sept. 2021)
• “DABUS Gains Traction: South Africa Becomes First Country to Recognize AI-Invented Patent,” co-author, Patently-O (Aug. 2021)
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