[Federal Register Volume 88, Number 51 (Thursday, March 16, 2023)]
[Rules and Regulations]
[Pages 16190-16194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05321]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
Copyright Registration Guidance: Works Containing Material
Generated by Artificial Intelligence
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Statement of policy.
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SUMMARY: The Copyright Office issues this statement of policy to
clarify its practices for examining and registering works that contain
material generated by the use of artificial intelligence technology.
DATES: This statement of policy is effective March 16, 2023.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected] or telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Office (the ``Office'') is the Federal agency tasked
with administering the copyright registration system, as well as
advising Congress, other agencies, and the Federal judiciary on
copyright and related matters.\1\ Because the Office has overseen
copyright registration since its origins in 1870, it has developed
substantial experience and expertise regarding ``the distinction
between copyrightable and noncopyrightable works.'' \2\ The Office
[[Page 16191]]
is empowered by the Copyright Act to establish the application used by
applicants seeking registration of their copyrighted works.\3\ While
the Act identifies certain minimum requirements, the Register may
determine that additional information is necessary for the Office to
evaluate the ``existence, ownership, or duration of the copyright.''
\4\ Because the Office receives roughly half a million applications for
registration each year, it sees new trends in registration activity
that may require modifying or expanding the information required to be
disclosed on an application.
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\1\ See 17 U.S.C. 408 (copyright registration requires
delivering deposit, application, and fee to Copyright Office),
701(a) (all administrative functions and duties set out in Title 17
are the responsibility of the Register of Copyrights), 701(b)(2)
(the Register's duties include providing ``information and
assistance'' to Federal agencies and courts on copyright and related
matters).
\2\ Norris Indus. v. Int'l Tel. & Tel. Corp., 696 F.2d 918, 922
(11th Cir. 1983). For this reason, courts credit the Office's
expertise in interpreting the Copyright Act, particularly in the
context of registration. See, e.g., Esquire, Inc. v. Ringer, 591
F.2d 796, 801-02 (D.C. Cir. 1978) (giving ``considerable weight'' to
the Register's refusal determination); Varsity Brands, Inc. v. Star
Athletica, LLC, 799 F.3d 468, 480 (6th Cir. 2015) (``the Copyright
Office's expertise in identifying and thinking about the difference
between art and function surpasses ours''), aff'd on other grounds,
580 U.S. 405 (2017).
\3\ 17 U.S.C. 409.
\4\ Id. at 409(10).
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One such recent development is the use of sophisticated artificial
intelligence (``AI'') technologies capable of producing expressive
material.\5\ These technologies ``train'' on vast quantities of
preexisting human-authored works and use inferences from that training
to generate new content. Some systems operate in response to a user's
textual instruction, called a ``prompt.'' \6\ The resulting output may
be textual, visual, or audio, and is determined by the AI based on its
design and the material it has been trained on. These technologies,
often described as ``generative AI,'' raise questions about whether the
material they produce is protected by copyright, whether works
consisting of both human-authored and AI-generated material may be
registered, and what information should be provided to the Office by
applicants seeking to register them.
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\5\ The term ``expressive material'' is used here to refer to AI
output that, if it had been created by a human, would fall within
the subject matter of copyright as defined in section 102 of the
Act. See id. at 102(a).
\6\ See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (noting for users of the artificial intelligence service
Midjourney a prompt is ``a short text phrase that the Midjourney
[service] uses to produce an image''). To be clear, this policy
statement is not limited to AI technologies that accept text
``prompts'' or to technologies permitting prompts of a particular
length or complexity.
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These are no longer hypothetical questions, as the Office is
already receiving and examining applications for registration that
claim copyright in AI-generated material. For example, in 2018 the
Office received an application for a visual work that the applicant
described as ``autonomously created by a computer algorithm running on
a machine.'' \7\ The application was denied because, based on the
applicant's representations in the application, the examiner found that
the work contained no human authorship. After a series of
administrative appeals, the Office's Review Board issued a final
determination affirming that the work could not be registered because
it was made ``without any creative contribution from a human actor.''
\8\
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\7\ U.S. Copyright Office Review Board, Decision Affirming
Refusal of Registration of a Recent Entrance to Paradise at 2 (Feb.
14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
\8\ Id. at 2-3. The Office's decision is currently being
challenged in Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.).
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More recently, the Office reviewed a registration for a work
containing human-authored elements combined with AI-generated images.
In February 2023, the Office concluded that a graphic novel \9\
comprised of human-authored text combined with images generated by the
AI service Midjourney constituted a copyrightable work, but that the
individual images themselves could not be protected by copyright.\10\
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\9\ On the application, the applicant described the work as a
``comic book.'' See U.S. Copyright Office, Cancellation Decision re:
Zarya of the Dawn (VAu001480196) at 2 (Feb. 21, 2023), https://www.copyright.gov/docs/zarya-of-the-dawn.pdf.
\10\ Id.
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The Office has received other applications that have named AI
technology as the author or co-author of the work or have included
statements in the ``Author Created'' or ``Note to Copyright Office''
sections of the application indicating that the work was produced by or
with the assistance of AI. Other applicants have not disclosed the
inclusion of AI-generated material but have mentioned the names of AI
technologies in the title of the work or the ``acknowledgments''
section of the deposit.
Based on these developments, the Office concludes that public
guidance is needed on the registration of works containing AI-generated
content. This statement of policy describes how the Office applies
copyright law's human authorship requirement to applications to
register such works and provides guidance to applicants.
The Office recognizes that AI-generated works implicate other
copyright issues not addressed in this statement. It has launched an
agency-wide initiative to delve into a wide range of these issues.
Among other things, the Office intends to publish a notice of inquiry
later this year seeking public input on additional legal and policy
topics, including how the law should apply to the use of copyrighted
works in AI training and the resulting treatment of outputs.
II. The Human Authorship Requirement
In the Office's view, it is well-established that copyright can
protect only material that is the product of human creativity. Most
fundamentally, the term ``author,'' which is used in both the
Constitution and the Copyright Act, excludes non-humans. The Office's
registration policies and regulations reflect statutory and judicial
guidance on this issue.
In its leading case on authorship, the Supreme Court used language
excluding non-humans in interpreting Congress's constitutional power to
provide ``authors'' the exclusive right to their ``writings.'' \11\ In
Burrow-Giles Lithographic Co. v. Sarony, a defendant accused of making
unauthorized copies of a photograph argued that the expansion of
copyright protection to photographs by Congress was unconstitutional
because ``a photograph is not a writing nor the production of an
author'' but is instead created by a camera.\12\ The Court disagreed,
holding that there was ``no doubt'' the Constitution's Copyright Clause
permitted photographs to be subject to copyright, ``so far as they are
representatives of original intellectual conceptions of the author.''
\13\ The Court defined an ``author'' as ``he to whom anything owes its
origin; originator; maker; one who completes a work of science or
literature.'' \14\ It repeatedly referred to such ``authors'' as human,
describing authors as a class of ``persons'' \15\ and a copyright as
``the exclusive right of a man to the production of his own genius or
intellect.'' \16\
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\11\ U.S. Const. art. I, sec. 8, cl. 8 (Congress has the power
``[t]o promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.'').
\12\ 111 U.S. 53, 56 (1884) (explaining that the defendant had
argued that photographs were merely ``reproduction on paper of the
exact features of some natural object or of some person'').
\13\ Id. at 58.
\14\ Id. at 57-58.
\15\ Id. at 56 (describing beneficiaries of the Constitution's
Copyright Clause as ``authors,'' who are one of ``two classes'' of
``persons'').
\16\ Id. at 58; see also id. at 60-61 (agreeing with an English
decision describing an ``author'' as the ``person'' who was ``the
cause of the picture which is produced'' and ``the man'' who creates
or gives effect to the idea in the work).
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Federal appellate courts have reached a similar conclusion when
interpreting the text of the Copyright Act, which provides copyright
protection only for ``works of authorship.'' \17\ The Ninth Circuit has
held that a book containing words ``authored by non-human spiritual
beings'' can only qualify for
[[Page 16192]]
copyright protection if there is ``human selection and arrangement of
the revelations.'' \18\ In another case, it held that a monkey cannot
register a copyright in photos it captures with a camera because the
Copyright Act refers to an author's ``children,'' ``widow,''
``grandchildren,'' and ``widower,''--terms that ``all imply humanity
and necessarily exclude animals.'' \19\
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\17\ 17 U.S.C. 102(a).
\18\ Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957-59
(9th Cir. 1997) (internal punctuation omitted) (holding that ``some
element of human creativity must have occurred in order for the Book
to be copyrightable'' because ``it is not creations of divine beings
that the copyright laws were intended to protect''). While the
compilation of the book was entitled to copyright, the alleged
``divine messages'' were not. Id.
\19\ Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018),
decided on other grounds.
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Relying on these cases among others, the Office's existing
registration guidance has long required that works be the product of
human authorship. In the 1973 edition of the Office's Compendium of
Copyright Office Practices, the Office warned that it would not
register materials that did not ``owe their origin to a human agent.''
\20\ The second edition of the Compendium, published in 1984, explained
that the ``term `authorship' implies that, for a work to be
copyrightable, it must owe its origin to a human being.'' \21\ And in
the current edition of the Compendium, the Office states that ``to
qualify as a work of `authorship' a work must be created by a human
being'' and that it ``will not register works produced by a machine or
mere mechanical process that operates randomly or automatically without
any creative input or intervention from a human author.'' \22\
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\20\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 2.8.3(I)(a)(1)(b) (1st ed. 1973), https://copyright.gov/history/comp/compendium-one.pdf (providing example of
shapes formed by liquid petroleum); see also U.S. Copyright Office,
Sixty-Eighth Annual Report of the Register of Copyrights for the
Fiscal Year Ending June 30, 1965, at 5 (1966), https://www.copyright.gov/reports/annual/archive/ar-1965.pdf (noting that
computer-generated works raise a ``crucial question'' of whether the
work ``is basically one of human authorship'').
\21\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 202.02(b) (2d ed. 1984), https://www.copyright.gov/history/comp/compendium-two.pdf (explaining that as a result,
``[m]aterials produced solely by nature, by plants, or by animals
are not copyrightable''). It went on to state that because ``a work
must be the product of human authorship,'' works ``produced by
mechanical processes or random selection without any contribution by
a human author are not registrable.'' Id. at 503.03(a).
\22\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 313.2 (3d ed. 2021) (``Compendium (Third)'').
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III. The Office's Application of the Human Authorship Requirement
As the agency overseeing the copyright registration system, the
Office has extensive experience in evaluating works submitted for
registration that contain human authorship combined with
uncopyrightable material, including material generated by or with the
assistance of technology. It begins by asking ``whether the `work' is
basically one of human authorship, with the computer [or other device]
merely being an assisting instrument, or whether the traditional
elements of authorship in the work (literary, artistic, or musical
expression or elements of selection, arrangement, etc.) were actually
conceived and executed not by man but by a machine.'' \23\ In the case
of works containing AI-generated material, the Office will consider
whether the AI contributions are the result of ``mechanical
reproduction'' or instead of an author's ``own original mental
conception, to which [the author] gave visible form.'' \24\ The answer
will depend on the circumstances, particularly how the AI tool operates
and how it was used to create the final work.\25\ This is necessarily a
case-by-case inquiry.
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\23\ Id. (quoting U.S. Copyright Office, Sixty-Eighth Annual
Report of the Register of Copyrights for the Fiscal Year Ending June
30, 1965, at 5 (1966)).
\24\ Sarony 111 U.S. at 60.
\25\ Many technologies are described or marketed as ``artificial
intelligence,'' but not all of them function the same way for
purposes of copyright law. For that reason, this analysis will be
fact specific.
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If a work's traditional elements of authorship were produced by a
machine, the work lacks human authorship and the Office will not
register it.\26\ For example, when an AI technology receives solely a
prompt \27\ from a human and produces complex written, visual, or
musical works in response, the ``traditional elements of authorship''
are determined and executed by the technology--not the human user.
Based on the Office's understanding of the generative AI technologies
currently available, users do not exercise ultimate creative control
over how such systems interpret prompts and generate material. Instead,
these prompts function more like instructions to a commissioned
artist--they identify what the prompter wishes to have depicted, but
the machine determines how those instructions are implemented in its
output.\28\ For example, if a user instructs a text-generating
technology to ``write a poem about copyright law in the style of
William Shakespeare,'' she can expect the system to generate text that
is recognizable as a poem, mentions copyright, and resembles
Shakespeare's style.\29\ But the technology will decide the rhyming
pattern, the words in each line, and the structure of the text.\30\
When an AI technology determines the expressive elements of its output,
the generated material is not the product of human authorship.\31\ As a
result, that material is not protected by copyright and must be
disclaimed in a registration application.\32\
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\26\ This includes situations where an AI technology is
developed such that it generates material autonomously without human
involvement. See U.S. Copyright Office Review Board, Decision
Affirming Refusal of Registration of a Recent Entrance to Paradise
at 2-3 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf (determining a
work ``autonomously created by artificial intelligence without any
creative contribution from a human actor'' was ``ineligible for
registration'').
\27\ While some prompts may be sufficiently creative to be
protected by copyright, that does not mean that material generated
from a copyrightable prompt is itself copyrightable.
\28\ One image-generating AI product describes prompts as
``influencing'' the output but does not suggest the prompts dictate
or control it. See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts (explaining that short text prompts cause ``each word
[to have] a more powerful influence'' and that images including in a
prompt may ``influence the style and content of the finished
result'') (emphasis added).
\29\ AI technologies do not always operate precisely as
instructed. For example, a text-generating tool prompted to provide
factual information may provide inaccurate information. One AI
service describes this as the AI ``mak[ing] up facts or
`hallucinat[ing]' outputs.'' ChatGPT General FAQ, OpenAI, https://help.openai.com/en/articles/6783457-chatgpt-general-faq. See also
James Romoser, No, Ruth Bader Ginsburg did not dissent in
Obergefell--and other things ChatGPT gets wrong about the Supreme
Court, SCOTUSblog (Jan. 26, 2023), https://www.scotusblog.com/2023/01/no-ruth-bader-ginsburg-did-not-dissent-in-obergefell-and-other-things-chatgpt-gets-wrong-about-the-supreme-court/.
\30\ Some technologies allow users to provide iterative
``feedback'' by providing additional prompts to the machine. For
example, the user may instruct the AI to revise the generated text
to mention a topic or emphasize a particular point. While such
instructions may give a user greater influence over the output, the
AI technology is what determines how to implement those additional
instructions.
\31\ See id. at 61 (quoting British decision by Lord Justice
Cotton describing an author as the person ``who has actually formed
the picture'').
\32\ See Compendium (Third) sec. 503.5 (a copyright registration
``does not cover any unclaimable material that the work may
contain,'' and applicants ``should exclude that material from the
claim'').
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In other cases, however, a work containing AI-generated material
will also contain sufficient human authorship to support a copyright
claim. For example, a human may select or arrange AI-generated material
in a sufficiently creative way that ``the resulting work as a whole
constitutes an original work of authorship.'' \33\ Or an artist may
modify material originally
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generated by AI technology to such a degree that the modifications meet
the standard for copyright protection.\34\ In these cases, copyright
will only protect the human-authored aspects of the work, which are
``independent of'' and do ``not affect'' the copyright status of the
AI-generated material itself.\35\
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\33\ 17 U.S.C. 101 (definition of ``compilation''). In the case
of a compilation including AI-generated material, the computer-
generated material will not be protected outside of the compilation.
\34\ See Compendium (Third) sec. 507.1 (identifying that where a
new author modifies a preexisting work, the ``new authorship . . .
may be registered, provided that it contains a sufficient amount of
original authorship''); see also 17 U.S.C. 101 (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'').
\35\ 17 U.S.C. 103(b).
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This policy does not mean that technological tools cannot be part
of the creative process. Authors have long used such tools to create
their works or to recast, transform, or adapt their expressive
authorship. For example, a visual artist who uses Adobe Photoshop to
edit an image remains the author of the modified image,\36\ and a
musical artist may use effects such as guitar pedals when creating a
sound recording. In each case, what matters is the extent to which the
human had creative control over the work's expression and ``actually
formed'' the traditional elements of authorship.\37\
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\36\ To the extent, however, that an artist uses the AI-powered
features in Photoshop, the edits will be subject to the above
analysis.
\37\ Sarony, 111 U.S. at 61.
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IV. Guidance for Copyright Applicants
Consistent with the Office's policies described above, applicants
have a duty to disclose the inclusion of AI-generated content in a work
submitted for registration and to provide a brief explanation of the
human author's contributions to the work. As contemplated by the
Copyright Act, such disclosures are ``information regarded by the
Register of Copyrights as bearing upon the preparation or
identification of the work or the existence, ownership, or duration of
the copyright.'' \38\
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\38\ 17 U.S.C. 409(10).
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A. How To Submit Applications for Works Containing AI-Generated
Material
Individuals who use AI technology in creating a work may claim
copyright protection for their own contributions to that work. They
must use the Standard Application,\39\ and in it identify the author(s)
and provide a brief statement in the ``Author Created'' field that
describes the authorship that was contributed by a human. For example,
an applicant who incorporates AI-generated text into a larger textual
work should claim the portions of the textual work that is human-
authored. And an applicant who creatively arranges the human and non-
human content within a work should fill out the ``Author Created''
field to claim: ``Selection, coordination, and arrangement of [describe
human-authored content] created by the author and [describe AI content]
generated by artificial intelligence.'' Applicants should not list an
AI technology or the company that provided it as an author or co-author
simply because they used it when creating their work.
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\39\ The Office's other types of application forms do not
contain fields where applicants can disclaim unprotectable material
such as AI-generated content. For example, the Single Application
may only be used if ``[a]ll of the content appearing in the work''
was ``created by the same individual.'' 37 CFR 202.3(b)(2)(i)(B).
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AI-generated content that is more than de minimis should be
explicitly excluded from the application.\40\ This may be done in the
``Limitation of the Claim'' section in the ``Other'' field, under the
``Material Excluded'' heading. Applicants should provide a brief
description of the AI-generated content, such as by entering
``[description of content] generated by artificial intelligence.''
Applicants may also provide additional information in the ``Note to
CO'' field in the Standard Application.
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\40\ The Office does not require applicants to disclaim ``brief
quotes, short phrases, and other de minimis uses'' of preexisting
works. Compendium (Third) sec. 503.5.
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Applicants who are unsure of how to fill out the application may
simply provide a general statement that a work contains AI-generated
material. The Office will contact the applicant when the claim is
reviewed and determine how to proceed. In some cases, the use of an AI
tool will not raise questions about human authorship, and the Office
will explain that nothing needs to be disclaimed on the application.
B. How To Correct a Previously Submitted or Pending Application
Applicants who have already submitted applications for works
containing AI-generated material should check that the information
provided to the Office adequately disclosed that material. If not, they
should take steps to correct their information so that the registration
remains effective.
For applications currently pending before the Office, applicants
should contact the Copyright Office's Public Information Office and
report that their application omitted the fact that the work contained
AI-generated material.\41\ Staff will add a note to the record, which
the examiner will see when reviewing the claim. If necessary, the
examiner then will correspond with the applicant to obtain additional
information about the nature of the human authorship included in the
work.
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\41\ The Public Information Office can be reached through the
Office's website (https://copyright.gov/help/) or by phone at (202)
707-3000 or (877) 476-0778.
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For applications that have already been processed and resulted in a
registration, the applicant should correct the public record by
submitting a supplementary registration. A supplementary registration
is a special type of registration that may be used ``to correct an
error in a copyright registration or to amplify the information given
in a registration.'' \42\ In the supplementary registration, the
applicant should describe the original material that the human author
contributed in the ``Author Created'' field, disclaim the AI-generated
material in the ``Material Excluded/Other'' field, and complete the
``New Material Added/Other'' field. As long as there is sufficient
human authorship, the Office will issue a new supplementary
registration certificate with a disclaimer addressing the AI-generated
material.\43\
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\42\ 17 U.S.C. 408(d); see also Compendium (Third) sec. 1802
(discussing supplementary registration process); U.S. Copyright
Office, Circular 8: Supplementary Registration, https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021); 37 CFR
201.3(c)(14) (fee schedule for supplementary registration).
\43\ Though the supplementary registration certificate will have
a new registration number and effective date of registration, the
original registration ``will not be expunged,'' and the two
effective dates ``will coexist with each other in the registration
record'' so that a court can determine which date to apply if the
copyrighted work is later subject to litigation. 37 CFR 202.6(f)(1)-
(2); U.S. Copyright Office, Circular 8: Supplementary Registration,
https://copyright.gov/circs/circ08.pdf (last revised Mar. 2021).
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Applicants who fail to update the public record after obtaining a
registration for material generated by AI risk losing the benefits of
the registration. If the Office becomes aware that information
essential to its evaluation of registrability ``has been omitted
entirely from the application or is questionable,'' it may take steps
to cancel the registration.\44\ Separately, a court may disregard a
registration in an infringement action pursuant to section 411(b) of
the Copyright Act if it concludes that the applicant knowingly provided
the Office with inaccurate information, and the accurate
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information would have resulted in the refusal of the registration.\45\
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\44\ See 37 CFR 201.7(c)(4). If the work contains human
authorship intermingled with AI-created material, the Office may add
an annotation to clarify the scope of the claim.
\45\ 17 U.S.C. 411(b)(1)(A); Unicolors, Inc. v. H&M Hennes &
Mauritz, L.P., 142 S. Ct. 941, 948 (2022) (requiring that the
applicant ``was actually aware of, or willfully blind to'' the
inaccurate information).
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V. Conclusion
This policy statement sets out the Office's approach to
registration of works containing material generated by AI technology.
The Office continues to monitor new factual and legal developments
involving AI and copyright and may issue additional guidance in the
future related to registration or the other copyright issues implicated
by this technology.
* * * * *
Dated: March 10, 2023.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2023-05321 Filed 3-15-23; 8:45 am]
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