Copyright and AI Content

We’ve watched the growth of artificial intelligence tools that generate web content with interest. Our focus has been on whether it works or not — is it a good way to save money on web content, for example? There’s another issue, though: copyright and AI content. 

Check out our experiences with these tools:

• Autogenerated Content
• Trying out Bertha AI

If you still want to try these tools on your website, what does that mean for your copyright protection?

Copyright requires human ingenuity

The 2021 Compendium of US Copyright Office Practices states that “works produced by a machine or mere mechanical process…without any creative input or intervention from a human author” are not protected by copyright.

The government’s guide to “What Can Be Registered” specifically says that the copyright office will provide copyright protection “provided that the work was created by a human being,” quoting 19th century precedents.

In February 2022, the Review Board of the United States Copyright Office confirmed these decisions. 

No two ways about it: only people can hold copyrights.

What about companies?

The confirmation mentioned was in response to a complaint by Dr. Stephen Thaler, who wanted to claim copyright for a work created as work for hire by an algorithm. If you pay for Bertha AI, you could be said to have hired her to create work for hire for your company. Companies are allowed to hold copyrights. That seems logical. 

If you hire Haden Interactive to write for you, you own everything that we write on your behalf. It says so in our contract.

However, the review board disagreed, saying that AI has no legal personhood and therefore can’t be involved in a work for hire contract. Paying to use Bertha or similar software is therefore legally quite different from hiring Haden Interactive. 

What does this mean for your website?

It’s not completely clear. Lexology pointed out a case in China where an AI writing tool was used to produce a financial report published on the web, which was then reproduced on another website. The court ruled that the AI tool was just that — a tool. The humans who used it were therefore covered by copyright laws, and the  second website that republished the report violated copyright. 

We haven’t seen a case like this in the United States yet, but it seems reasonable. If you use an AI writing tool as part of your software stack, it seems as though it’s similar to using a tool like Canva for graphics. There’s at least a little bit of human ingenuity involved. 

Frankly, AI tools are not currently good enough at writing that their unassisted work would be worth copyright. If you let Bertha write your whole blog post, it will not be good enough for a human being to want to steal it. 

Other bots might scrape it and post it automatically on their websites. We could see bots stealing one another’s autogenerated content all over the web. That’s a waste of electricity, but it doesn’t seem like a crime.