For decades, the Copyright Office was a small and sleepy office within the Library of Congress. Every year, the agency's 450 employees register around half a million copyrights, the ownership right to creative works, based on a two-century-old law.
In recent months, however, the office has suddenly found itself in the spotlight. Lobbyists from Microsoft, Google and the music and news industries have requested a meeting with Shira Perlmutter, the copyright registrar, and her staff. Thousands of artists, musicians and technical executives have written to the agency, and hundreds have asked to speak at listening sessions hosted by the office.
The attention comes from a unique copyright review the Copyright Office is conducting in the age of artificial intelligence. Technology – fueled by creative content – has upended traditional copyright norms that give owners of books, films and music the exclusive ability to distribute and copy their works.
The agency plans to publish three reports this year outlining its position on copyright law as it relates to AI. The reports will be extremely consequential and will have a major impact on courts, legislatures and regulators alike.
“We are now learning that the issue is receiving a lot of public attention, so it is a very exciting and challenging time,” Ms Perlmutter said.
The Copyright Office review has put it in the middle of a heated conflict between the tech and media industries over the value of intellectual property to train new AI models that are likely to pick up copyrighted books, news articles, songs, art and essays Generate images. Since the 1790s, copyright law has protected works so that an author or artist “can reap the fruits of their intellectual creativity,” the Copyright Office explains on its website.
This law is currently the subject of heated debate. Authors, artists, media companies and others say the AI models violate their copyrights. Technology companies say they do not reproduce the materials and that they use data publicly available on the Internet, which constitutes fair use and is within the bounds of the law. The fight has led to lawsuits, including one filed by the New York Times against ChatGPT inventor OpenAI and Microsoft. And copyright holders are pushing for authorities to rein in the tech companies.
“What the Copyright Office is doing is a big deal because there are important legal principles and there is a lot, a lot of money involved,” said Rebecca Tushnet, a professor of copyright and intellectual property law at Harvard Law School. “Ultimately, it’s not about whether these models will exist. It depends on who gets paid.”
Congress established the Copyright Office in 1870 licenses for books, maps, essays, and other creative works and to store these works in the Library of Congress for use by lawmakers. The first registration was for the “Philadelphia Spelling Book”, a children's language book.
When Ms. Perlmutter, a veteran copyright official and former intellectual property lawyer at Time Warner, was named head of the Copyright Office in late 2020, she promised to bring the office into the modern age by focusing on big technology trends. She drew inspiration from previous leaders who embraced technological innovations such as the camera, records, Xerox machines, the Internet and music streaming. All of this required the office to consider how copyright law would be applied and to advise Congress on proposed changes 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 the piece, a pixelated scene of train tracks running through a tunnel covered in bushes and flowers titled “A Recent Entrance to Paradise.” In February 2022, Ms. Perlmutter rejected his second attempt the piece on the same grounds: copyrights are only granted 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, urging her to also intervene in the way AI companies protect copyright material used to train their systems.
In August, it opened the formal review of AI and copyright law. The office said it will examine whether using intellectual property to train AI models violates the law and investigate further whether machine-generated works may be protected by copyright. The office said it would also examine how AI tools created content that used people's names, images and likenesses without their consent or compensation.
“There is a lot of attention on AI,” Ms. Perlmutter said in an interview. “Current generative AI systems raise many complicated copyright issues – some call them existential ones – that really require us to grapple with fundamental questions about the nature and value of human creativity.”
The interest in evaluating the office was overwhelming. The office solicited public comment on the issue and received more than 10,000 responses through a form on its website. A typical policy review receives no more than 20 comments, the office said.
Tech companies argued in comments on the site that the way their models captured creative content was innovative and legal. Venture capital firm Andreessen Horowitz, which has made several investments in AI startups, warned in its comments that any slowdown in AI companies' use of content “will shatter at least a decade of investment-backed expectations based on current understanding.” “the extent of copyright protection in this country.”
OpenAI, Microsoft, Meta (Facebook's parent company) and Google are currently relying on a 2015 court decision in a case brought by the Authors Guild.
The guild sued Google in 2005 over its scanning of books for use in excerpts in its search engine results and for sharing with libraries. A court ruled that Google had not violated copyright. It said that scanning entire books was permitted because Google did not provide the entire book and it was a “transformative” use of copyrighted material. Google relied on an exception to copyright law known as “fair use,” which allows limited reproduction of copyrighted material for purposes such as criticism, parody, or other transformative purposes.
Google, Meta and AI startup Anthropic reiterated all of the arguments from this case in their comments to the Copyright Office, including saying that AI copies the information to analyze data and does not reuse it for creative work.
Authors, musicians and the media industry argued that AI companies were robbing them of their livelihoods by taking over their content without permission or royalties.
“The lack of consent and compensation in this process is theft,” Justine Bateman, the actress and author of “Family Ties,” wrote in comments to the Copyright Office.
News Corp, publisher of the Wall Street Journal and New York Post, urged the bureau “not to lose sight of this simple truth: Protecting content creators is one of the core missions of copyright law.” (The Times also has one Comment made.)
Ms. Perlmutter said she and a team of about two dozen copyright lawyers go through every comment submitted to the office.
Still, the office may not offer clear views that satisfy neither the tech companies nor the creative minds.
“As technology becomes more sophisticated, the challenges become exponentially more difficult and the risks and opportunities exponentially greater,” Ms. Perlmutter said.
Audio produced by Sarah Diamond.