The AI Update | April 18, 2023
from the Duane Morris Technology, Media & Telecom Group
#HelloWorld. In this edition, momentum picks up in Congress, the executive branch, and the states to regulate AI, while more intellectual-property litigation may be on the horizon. Overseas, governments continue to be wary of the new large AI models. It’s getting complicated. Let’s stay smart together.
Proposed legislation in the U.S.: Senate Majority Leader Chuck Schumer (D-N.Y.) revealed that his office has met with AI experts to develop a framework for AI legislation for release in the coming weeks. The proposal’s centerpiece would require independent experts to test AI technologies before their public launch and would permit users to access those independent assessments.
This is not the only AI-related legislative effort to have emerged from Congress. Last year, Senators Ron Wyden (D-Ore.) and Cory Booker (D-N.J.), and Representative Yvette Clarke (D-N.Y.) proposed the Algorithmic Accountability Act of 2022, focused on “automated decision systems” using AI algorithms to make “critical decisions” relating to e.g. education, employment, healthcare, and public benefits. The proposal would require these AI systems to undergo regular “impact assessments,” under the general supervision of the Federal Trade Commission. This bill has not yet emerged from committee.
Can A Machine Be Creative?
On March 16, 2023, the United States Copyright Office (USCO) published Copyright Registration Guidance (Guidance) on generative AI[1]. In the Guidance, the USCO reminded us 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.” This statement curiously conjures the notion of a machine creating copyrightable works autonomously.
While the operation of a machine, or specifically the execution of the underlying AI technology, may be largely mechanical with little human involvement, the design of the AI technology can take significant human effort. If we look at protecting human works that power machines as intellectual property in the broad context where AI has been applied, just like authorship has been an issue when an AI technology is used in creating copyrightable subject matter, inventorship has been an issue when an AI technology is used in generating an idea that may be eligible for patent protection. Unlike the evaluation of authorship, though, the assessment of inventorship puts human contribution to the AI technology front and center[2]. Without getting into the reasons for this difference in treatment, let’s consider the question of whether an AI technology used in creating copyrightable subject matter, or specifically the human contribution to such an AI technology, generally does or does not provide any “creative input.”
The AI Update | April 4, 2023
from the Duane Morris Technology, Media & Telecom Group
#HelloWorld. Welcome to the first edition of The AI Update. Every other week, we’ll provide you with a curated summary of the most relevant, impactful legal developments in the world of AI. Let’s stay smart together.
Our mission: Since ChatGPT’s public launch last November, the onslaught of AI-related news has been daily and relentless. We’ve guided our clients one-on-one about legal developments, the knowns and unknowns, and what we see coming down the road. So much so that a centralized information exchange—this newsletter—feels like a logical next step. Why every two weeks and why only one page? So as not to continue the flood. What if you want more detail? Contact us individually and we’ll get you up to speed. There’s a lot of noise out there; we try to focus on the signal.
Regulatory activity in the U.S.: For now, two agencies have emerged as the most vocal in the AI space (at least in public). The Copyright Office released guidance on how to seek copyright protection for works created with generative-AI assistance. In short: a human author is required and any AI-tool use must be disclosed and disclaimed. The Office is also holding a series of public listening sessions on this and other related AI topics, like the use of copyrighted works to train AI models. The sessions start on April 19—stay tuned for highlights in future editions of The AI Update.