The United States Copyright Office (USCO) recently released its second report, Copyright and Artificial Intelligence Part 2: Copyrightability (the Report), as part of its ongoing study on copyright and artificial intelligence (AI).
The Report addresses the copyrightability of output generated by AI systems and analyzes the type and level of human contribution sufficient to bring these outputs within the scope of copyright protection in the United States. The report provides some clarity on the current landscape regarding how such issues are currently dealt with and considers proposed changes.
The Government of Canada also recently released its What We Heard Report, which summarizes the comments it received as part of its Consultation on Copyright in the Age of Generative Artificial Intelligence. Our comments on this report can be found here.
Background
In early 2023, the USCO announced a broad initiative to explore the intersection of copyright and AI. The Report is based upon a Notice of Inquiry held in August 2023 that formally sought public input on the full range of copyright issues that had been raised. In response, it received more than 10,000 comments representing a broad range of perspectives.
The Report is being published in several parts. The first report, published in 2024, addressed the topic of digital replicas – the use of digital technology to realistically replicate an individual’s voice or appearance (or “deepfakes”).
The second Report, which is the topic of this commentary, was released by the USCO on January 29, 2025, and delves into the issue of copyrightability of outputs generated by AI.
Highlights From the Report
Based on an analysis of copyright law and policy, informed by almost 5,000 stakeholders’ comments, the USCO makes the following conclusions and recommendations as it relates to copyrightability of AI-generated works:
- Questions of copyrightability and AI can be resolved pursuant to existing law, without the need for legislative change.
- The use of AI tools to assist rather than stand in for human creativity does not affect the availability of copyright protection for the output.
- Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material.
- Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.
- Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.
- Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.
- Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs.
- The case has not been made for additional copyright or sui generis protection for AI-generated content.
In addition to the conclusions and recommendations, the Report provided some clarity on the following issues:
Role of prompt engineering: The USCO takes the view, given how today’s AI systems operate, that prompt engineering alone does not provide sufficient human control to make users of an AI system the authors of the output. Specifically, the gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression and the system is largely responsible for determining the expressive elements in the output. In other words, prompts may reflect a user’s mental conception or idea, but the user does not control the way that idea is expressed. Interestingly, the USCO leaves the door open that someday with advances in AI-technology that provide users with greater control over the expressive elements, a different conclusion might be reached. However, if the AI-technology allows for further automation and optimization (as opposed to control), that will go to further the USCO’s current view on prompt engineering and copyrightability.
Expressive inputs retain their copyrightability: Where a human inputs their own copyrightable work (which is a type of “expressive input”) and that work is perceptible in the output, they will be the author of at least that portion of the output. Just as derivative work protection is limited to the material added by the later author, copyright in this type of AI-generated output would cover the perceptible human expression. It may also cover the selection, coordination, and arrangement of the human-authored and AI-generated material, even though it would not extend to the AI-generated elements standing alone.
Material modifications to AI output may be copyrightable: Unlike prompts alone, tools which enable a user to control the selection and placement of individual creative elements may rise to the minimum standard of originality required but this will depend on a case-by-case determination. In those cases where they do, the output should be copyrightable. Similarly, the inclusion of elements of AI-generated content in a larger human-authored work does not affect the copyrightability of the larger human-authored work as a whole. For example, a film that includes AI-generated special effects or background artwork is copyrightable, even if the AI effects and artwork separately are not.
Keeping an eye on international approaches: The USCO discussed how other countries are analyzing whether copyright protection should extend to works containing AI-generated material. Those that have addressed this issue so far have agreed that copyright requires human authorship. Although some level of consensus on the need for human authorship appears to be emerging and most countries have so far continued to apply existing law, it is clear that views are still being formed. The USCO’s commentary on international approaches is a welcome indication that issues of international interoperability remain part of US’s consideration on AI and copyright.
Overall, the USCO concluded that just as copyright law has adapted to new technology in the past, existing legal doctrines are adequate and appropriate to resolve questions of copyrightability and AI. It reaffirmed its view that copyrightability of AI-generated works: (a) requires human authorship (which must include sufficient human input and creativity; and (b) comes down to a case-by-case contextual determination. The Report’s conclusions highlight the important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity.
Conclusion
As with other jurisdictions, including Canada, the United States is actively grappling with how to deal with copyrightability and related issues in the age of generative AI.
The Report is the second of several parts. The next, third report, will turn to the training of AI models on copyrighted works, licensing considerations, and allocation of any liability.
The Reports indicates that the current state of copyright maintains a focus on human creativity, allowing AI to assist rather than replace human authors, ensuring that the value and integrity of human artistic expression remains protected. This is in keeping with the broader “human centric” approach to AI that policymakers are pushing for in their efforts to regulate this technology.
The Cassels copyright team is a leader in copyright policy and reform matters, including in relation to AI. We would be pleased to speak with you if you would like to discuss any of the issues raised in the Report.