Why AI Makes Copyright Registration More Important

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The rise of AI has shined a light on the United States Copyright Office and its copyright registration system. However, most of that attention has focused on registering works generated by AI, either in part or in whole.

Whether it’s been the USCO rejecting registrations for AI-generated works, guidelines on registering works with AI-generated content or debates about whether AI content qualifies for copyright protection at all, the USCO has been making headlines in the space.

However, there’s another side to the coin.

Creators have filed dozens of lawsuits against AI companies. Artists, writers, musicians and filmmakers have all filed cases alleging that their work was unlawfully used to train AI systems. Many cases are class action lawsuits, which seek to represent a larger group of related creators.

This creates a difficult decision for creators on the sidelines. These lawsuits will likely play a key role in determining how AI companies can use your work. However, enforcing whatever boundaries are drawn will likely be difficult.

That’s because, in the United States, a registration with the USCO is required to file a lawsuit, and a timely registration is required to collect full damages. This puts most creators in a strange position, where filing a copyright registration is something to consider seriously.

A Bizarre Calculus

To be clear, I’ve made it no secret that I’m not a fan of the registration requirement in the United States.

The US is the only country in the world with such a requirement. Despite attempts to improve it, the system is confusing and onerous. The registration costs disenfranchise less-wealthy creators, and simple mistakes can invalidate your copyright.

It’s an unnecessary hurdle that disproportionately impacts smaller creators. It also contradicts the stated intent of international conventions and means that US creators have fewer protections than foreign ones in their own country.

However, that doesn’t change the fact that the system is in effect. For artists, this has created a bizarre calculus in which they must determine whether a copyright registration is worthwhile.

There are many variables that go into that. The type of work involved, the likelihood of infringement, the practicality of a lawsuit and one’s knowledge of the USCO system all play a role. The math doesn’t add up for many creators, even those aware of the registration requirement.

However, for some, AI may change that calculus.

For many creators, one reason not to register with the USCO is that they’re unlikely to be infringed by someone who can be effectively sued. Due to the above reasons, only a small fraction of infringements even result in a formal letter.

However, with AI, things may change.

Mass Scale Infringement

Simply put, litigation is impractical for most internet-based infringements, even if the work involved is timely registered.

The infringer is often unknown. If they are known, they may be too small. If they aren’t too small, they are likely in an impractical jurisdiction. Finally, the likely damages may not justify a lawsuit even if they are in a reasonable jurisdiction.

In short, for any infringement to become a lawsuit, the case must overcome several hurdles, many of which are incredibly high. AI companies, however, overcome many of those hurdles instantly.

They are large, well-funded companies based in the United States, and they widely use publicly available content. If their use is ruled to be infringing, there will likely be a slew of class action lawsuits and those with copyright registrations will, at the very least, be better positioned to participate in them.

To be clear, we don’t know if AI companies’ activity is infringing. It will likely take several years and many rulings before we understand the boundaries in this space. But if there is infringement, those with copyright registrations will be best able to pursue it.

While this may not change the calculus for everyone, it does put a thumb on the scale and make copyright registration more appealing for some. I don’t expect a rush of creators flocking to the USCO to register their works, but some who have been biding their time may be motivated to move.

Simply put, there’s a reasonable guarantee that your content has been used to train an AI system. If that is later ruled to be an infringement, a copyright registration may be what separates you from collecting on that infringement or watching from the sidelines.

Bottom Line

To be clear, there’s absolutely no guarantee that courts will side with the rightsholders or that those who timely register their works with the USCO will receive a windfall.

However, many rightsholders have avoided registering their work simply because their work was never likely to be infringed in a way that could justify a lawsuit. For some, AI may represent a change in that thinking.

While this is only one element in the calculus around copyright registration, it is an important one. Creators who never considered they might find themselves in a legal dispute have some reason to think otherwise.

While nothing is certain in this space, a copyright registration may be the difference between reaping the benefits of any litigation and watching from the sidelines.

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