BAEC Bulletin - September/October 2023

BAEC Bulletin | September/October 2023 | 15

copyright protection for a generative AI created work? The answer is, it depends. Instead of developing a new test, the Copyright Office’s current position is to treat content created by generative AI the same as other unprotectable works. The determinative question becomes: Does the work contain sufficient human authorship in addition to the generative AI content to make it eligible for copyright protection? If the work consists entirely of generative AI content, it does not receive protection for the reasons discussed above. If the work consists of generative AI content and sufficient human authorship to support a copyright claim, then the human-authored portion of the work may be protected, and the generative AI content is excluded. The Copyright Office provides examples of such works by comparing a human author’s selection and arrangement of the generative AI content to compilations and a human author’s additional creative modifications to the generative AI content to derivative works. 7 For works combining human authorship with generative AI content, copyright protection is secured automatically when the work is created. A copyright registration for such work may be obtained by expressly excluding the generative AI content as part of the “Limitation of the Claim,” “Material Excluded” section of the application. The Copyright Office notes, that de minimis inclusion of generative

AI content and works where “use of an AI tool [does] not raise questions about human authorship” will not require this express disclaimer, but it is unclear how this exception will be applied in practice. 8 Using this article as an example, taking the position that it is a copyrightable work of human authorship that contains generative AI content, I would complete the copyright application as normal, but would provide a brief description of the portion of the second paragraph drafted by generative AI in the “Limitation of the Claim,” “Material Excluded” section. Generative AI has raised countless questions and issues that have the potential to shape law and policy going forward. For now, limiting our scope to the specific question of copyright protection and generative AI content, the path to protection and registration is relatively clear. Determining sufficient human authorship and other copyright requirements will remain a case-by-case inquiry, but a work may be copyrightable even if it contains some generative AI content. 1 111 U.S. 53, 56-58 (1884). 2 Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997). 3 Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018). 4 U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 313.2 (3d ed. 2021). 5 Id. 6 Copyright Registration Guidance for Works Containing AI-Generated Materials, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023). 7 Id. at 16,192-93 (citing 17 U.S.C. § 101; U.S. COPYRIGHT OFFICE, supra note 4, at § 507.1) (on compilations, stating “In the case of a compilation including AI-generated material, the computer-generated material will not be protected outside of the compilation” and, on derivative works, “where a new author modifies a preexisting work, the ‘new authorship . . . may be registered, provided that it contains a sufficient amount of original authorship’” and “defining ‘derivative work’ to include works ‘based upon one or more preexisting works’ where modifications to the work ‘which, as a whole, represent an original work of authorship”). 8 Copyright Registration Guidance for Works Containing AI-Generated Materials, 88 Fed. Reg. at 16,193.

Request for Public Comment on Amending 22 NYCRR § 202.70(b)(1) to Add a Reference to Technology in the Description of Commercial Cases The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the Commercial Division Advisory Council (CDAC), to amend the Rules of the Commercial Division, 22 NYCRR 202.70(b)(1), to include “technology transactions and/or other matters involving or arising out of technology” as an example of a commercial case that the Commercial Division has jurisdiction over. Click here to read the full request. Request for Public Comment on Amending Chief Administrative Judge Rule 126.3 to Increase the Per Diem Rates for Judges Assigned to an Off-Hours Arraignment Part The Administrative Board of the Courts is seeking public comment on a proposal to amend Rule 126.3 of the Chief Administrator (22 NYCRR § 126.3) concerning the per diem rates paid to town and village judges and justices and part-time city court judges assigned to an off-hours arraignment part. Click here to read the full request.