On Writers, AI, "Style," and Copyright

The other day I received this link to a survey study on artificial intelligence put out by the U.S. Copyright Office. They’re collecting public comments about AI and copyright until Oct. 18, 2023. Here’s the intro text:

The United States Copyright Office is undertaking a study of the copyright law and policy issues raised by artificial intelligence (“AI”) systems. To inform the Office's study and help assess whether legislative or regulatory steps in this area are warranted, the Office seeks comment on these issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.

Like many writers who teach, I’m on two sides of this debate. Of course my initial reaction as a writer is “don’t steal my content,” but while when I’m wearing my professor hat, I know I have to develop pedagogies to work with AI because it’s kind of now unavoidable in the classroom. And then there’s my third hat, where I’m teaching classes on publishing and editing and trying to figure out how this will affect publishing in the future.

The copyright office’s memo cites two cases where it had to decide whether machine-generated content could be copyrighted by a human. The second one:

A second registration application, submitted in 2022, involved a work containing both human authorship and generative AI material. The work was a graphic novel with text written by the human applicant and illustrations created through the use of Midjourney, a generative AI system. After soliciting information from the applicant about the process of the work's creation, the Office determined that copyright protected both the human-authored text and human selection and arrangement of the text and images, but not the AI-generated images themselves. ⁽²⁰⁾ The Office explained that where a human author lacks sufficient creative control over the AI-generated components of a work, the human is not the “author” of those components for copyright purposes. ⁽²¹⁾ The Office continues to receive applications to register works incorporating AI-generated material, involving different levels of human contributions. ⁽²²⁾

(Emphasis in above is mine.) This will, I imagine, produce a fascinating and narrowing definition of copyright as being determined by a human’s creative control. I don’t even know what I think about that, but I wonder what the definition of “creative control” will be. This and other inquiries and applications have led the office to ask for public comment on three issues. As a writer, this one is, right now, the one that made me submit a comment:

As to the first issue, the Office is aware that there is disagreement about whether or when the use of copyrighted works to develop datasets for training AI models (in both generative and non-generative systems) is infringing.

What follows are 34 (34!) separate questions to consider with regard to this issue. They are definitely being thorough. Here are just a few:

1. As described above, generative AI systems have the ability to produce material that would be copyrightable if it were created by a human author. What are your views on the potential benefits and risks of this technology? How is the use of this technology currently affecting or likely to affect creators, copyright owners, technology developers, researchers, and the public?

2. Does the increasing use or distribution of AI-generated material raise any unique issues for your sector or industry as compared to other copyright stakeholders?

3. Please identify any papers or studies that you believe are relevant to this Notice. These may address, for example, the economic effects of generative AI on the creative industries or how different licensing regimes do or could operate to remunerate copyright owners and/or creators for the use of their works in training AI models. The Office requests that commenters provide a hyperlink to the identified papers.

4. Are there any statutory or regulatory approaches that have been adopted or are under consideration in other countries that relate to copyright and AI that should be considered or avoided in the United States?  ⁽⁴⁰⁾ How important a factor is international consistency in this area across borders?

5. Is new legislation warranted to address copyright or related issues with generative AI? If so, what should it entail? Specific proposals and legislative text are not necessary, but the Office welcomes any proposals or text for review.

Here’s the comment I entered:

As a writer, I would find it to be a complete copyright violation to have an AI model trained to mimic my style or voice by being fed copyrighted works written by me. The appropriation of my text to train an AI application would require a human actor, and that human and any other humans who used the resulting AI application should be legally liable for infringing on my copyright. I believe the act of feeding copyrighted text into an AI application is essentially building a machine to break copyright and to pirate a style and sensibility I have worked for thousands of hours to develop. My style and sensibility have been won by hard human experience, reflection, and a great deal of reading and trial and error. This represents (if I were to charge an hourly rate) a massive expense to create that style and sensibility. To use the results of that hard-won experience to generate text is to appropriate all of the life experiences and expenses used to create that writing—all without any form of compensation. Feeding writers’ work into an AI application should be illegal unless the writer explicitly consents, and AI applications should retain records of texts that are fed into it and produce citations that recognize those texts.

After I submitted my comment, I got a Captcha that asked me to confirm that I wasn’t a robot. If I have to certify I’m not a robot over and over, text generated with the help of AI should have to identify itself as being part robot,

But who knows, maybe I’ll change my mind tomorrow.