In the last year, the issue of whether people can copyright AI content has raised its head. This is largely down to the development and now prominence of generative AI tools that can be used to create content.

The Copyright Office has had to consider copyright law for AI and ask questions regarding AI-generated vs. AI-assisted content. The distinction between these two terms is key to understanding whether a piece of work can be protected by copyright.

There's a lot to unpack regarding AI copyright for writers. How much can AI be involved in the creative process? What kind of contribution does a human have to make compared to a machine? Who needs to be controlling the creative decisions?

In this piece, we are going to examine AI copyright best practices and clarify how much AI can be involved in creating your work.

AI Tools: The New Frontier for Writers

The written word is a powerful thing that has long been accompanied by powerful tools. Whether it's been symbols chiseled into stone or words printed on paper, writing has long been a significant way that we as humans have shared information and expressed ourselves creatively.

Over the past few decades, the world has been in a digital revolution. The internet and smart devices show up in every household and contribute to the way we communicate. Publishing has been caught up in revolutions before with the invention of the printing press, and now is the era of a new frontier: artificial intelligence.

AI has exploded into the literary landscape over the past number of years. Artificial intelligence software can now help streamline publishing by assisting with editing and research. While AI tools cannot replace human creativity or intelligence, they can be our ultimate assistant in our journey to make something new. Whether it's by making suggestions or helping us plan out our work, AI has revolutionized the world of publishing.

Why Is Copyright Relevant for Writers?

Before we get into the specifics of copyrighting AI content, let's quickly examine why copyright is important.

As a writer or any kind of creative, you work hard on crafting your work. You bring a unique and expressive element to what you do that only you can bring. When you spend hours putting together your bestseller and developing your author identity to build a career as an author, you deserve to get credit for your work.

Ensuring you have the copyright for your creative work provides you with protection for your intellectual property. If you have published a book but don't have the copyright, then someone else could easily rip off your work without giving you any credit. So, copyrighting your work ensures that you get the reward for your hard work.

The Copyright Office is the body that controls copyright. And recently, they have been met with the dilemma surrounding copyright law for AI.

Issues Around Copyrighting AI Content

When it comes to getting work copyrighted, there are two ways the Copyright Office defines submitted works:

• Copyrightable: Works that have a valid case for being copyrighted by the individual who has brought them forward.
• Non Copyrightable: Works that are deemed not worthy of copyright are appropriate for anyone.

In some cases, which category a piece of work falls into can be clearly seen and doesn't need to be reviewed for long. However, when it comes to copyrighting AI content, there is debate over to what extent AI works can be protected, if at all.

The Copyright Office uses the term 'author' to describe the person who made the work. Person is the operative word here. Non-human animals cannot protect something through copyright (for example, if a monkey painted a picture, they couldn't protect the design with a copyright). The fact that an author has to be human in order to secure the protection of their intellectual property raises questions over copyright law for AI.

When an AI tool generates content, can we really say the author is a human? The person operating the AI tools may have only entered some prompts to generate text or an image. However, the creative work was done using artificial intelligence software. So, if the humans didn't actually do any creative work, can they really claim authorship?

You may argue that the individual operating the software initiated the process by entering prompts, but the AI tool generated content based on the preexisting input it had. As AI tools generate content based on information that is already out there, it can't really be claimed that the generated work was made by a human author.

We'll get into the distinction between AI-generated and AI-assisted content shortly, but first, let's look at the basic elements of law pertaining to copyrighting content generated by AI.

Copyright Law for AI Content

The Copyright Office has received multiple applications to protect content made or made in part by AI. This has meant the body has had to look at the definition of authorship and copyright in order to make decisions about AI copyright best practices to follow.

First and foremost, the Copyright Office has made it clear that works that don't have any creative contribution by a human author cannot be protected by copyright. Legally, work generated by machines cannot be attributed to an individual. So, if all an author did was enter prompts into AI software, the generated content cannot be legally copyrighted.

This goes back to the language used in the Copyright Office regulations. Authors have to be humans in order to copyright their writings. Note that in this context, writings doesn't exclusively mean written material; the word could also refer to an image or a piece of music. Basically, writings are something the author has created.

But how do you define writings? Under the human authorship section of their copyright law for AI content regulations, the Copyright Office says an author can copyright their writings if "they are representatives of original intellectual conceptions of the author." This means the work has to be something unique that the author actually created. To copyright the work, it must be the author's intellectual property.

So an author can't claim copyright over something that is AI-generated because the author didn't come up with the unique elements of creative expression. The AI tool generates content based on information it has learned from other sources, while the person operating the software simply prompts it to do so.

The Copyright Office held seminars about artificial intelligence and the issues surrounding copyright. The department made it clear that while content entirely generated by artificial intelligence software cannot be protected by copyright, it is still acceptable to copyright content created by an author who used AI to assist them. We'll look at the issues of AI-generated versus AI-assisted content and how AI can and cannot be used when it comes to content you want to copyright.

But the first thing to establish is that you are allowed to use AI tools in the process of creation and copyright work, but you need to follow AI tool best practices and be aware of the law.

AI Copyright for Writers

We know then that in order to copyright work:

• There has to be a human author
• The content needs to be their intellectual property
• The author needs to have contributed the unique creative parts of their writings
• The content cannot simply have been generated by AI

We've mentioned that the term writings in the context of copyright can refer to anything an author created, but what about actual written words? How do these developments impact AI copyright for writers?

Essentially, in order to copyright written work, you have to have written the words yourself. That doesn't mean you can't use AI tools to assist you along the way, but the expressive elements of the written words have to have come from you.

For example, if you ask an AI tool to generate a story for you and you give it prompts regarding genre and character names, the AI will then use its database of knowledge to produce what you have asked for. You cannot copyright the output, as you did not create it.

What you can do, however, is use AI to assist you in your writing journey. Let's look at how we can differentiate between AI-generated and AI-assisted content.

AI-Generated vs AI-Assisted Content

How do we distinguish between content that is generated by AI and content that is assisted by AI?

The term used by the Copyright Office is de minimus (sometimes spelled de minimis). This is a Latin term that is a reduction of a longer phrase, "de minimis non curat lex," which translates to "the law does not concern itself with trifles." In the context of the court of law, it means the court won't be concerned with trifling matters. To describe something as de minimus is to essentially say it is too minute to have any meaning or to take into consideration. It is something that is trivial and not of significance or noteworthiness.

Let's relate the term de minimus back to copyrighting AI content. The Copyright Office says that an author can copyright creative works which saw some use of AI, provided that usage is de minimus. So if the contribution of the AI was small and relatively trivial then the work can be copyrighted.

Let's take the example of AI copyright for writers. A writer is able to use AI to brainstorm, generate ideas, work on phrasing and make suggestions and in doing this can still copyright the work provided the (human) writer came up with the unique creative elements.

This means writers can comfortably use revolutionary tools to assist them in creating a best seller, provided they make amendments to anything generated by the AI software and avoid trying to pass off the AI-generated work as their own.

Think of it like doing research online. You can't simply copy and paste paragraphs from Wikipedia and publish an article under your own name, as this is plagiarism. However, you could use Wikipedia articles to gather information and sources and gain a basic understanding of a topic. And you could use online resources to come up with ideas for discussion points.

The Copyright Office notes that works can be copyrighted if machinery is involved in their creation. For example, a piece of music can be copyrighted if a musician has used a guitar pedal to influence the sound. This is because the human author is still the one creating the unique, expressive elements of the work. So, provided the AI is just being used as another tool to help you on your journey and is not the star of the show, it's okay to copyright the work.

Making Sure You Can Copyright AI Content

When it comes to using AI to help you create your multimedia content, keep these things in mind:

• In order to copyright your work, you, the human author, have to have come up with the expressive elements on your own.
• You can't copy and paste text, images, or audio generated by an AI tool and then copyright them.
• The contribution of the AI tool should be de minimus and shouldn't encompass everything original about the work.

AI Copyright Best Practices

If you are looking to copyright a piece of work and the creation of the work involves using AI, it's important to follow AI copyright best practices. Crucially, you need to provide the Copyright Office with all relevant information about AI usage in the creation process. If you are found to have neglected to mention the contribution of AI tools, then your copyright will be denied or taken back. So tell the copyright office everything.

As we have looked at, in order to copyright AI content, you have to have had a key input into the creative process and be able to prove you had creative control and not the machine. When it comes to images, if you are using AI to generate an image, then in order to copyright it, you have to have introduced elements to the image that are original and new.

Above all, always use AI tools responsibly. Use tools that respect intellectual property and don't use AI to infringe on other people's work.

AI Tools: Best Practices for Writers and Creatives

Outside of copyright, always be mindful of these key AI tool best practices:

• Use AI as a tool to assist you on your creative journey rather than control your creative journey.
• Under no circumstances should you generate non-consensual sexual content using AI.
• Never use AI to abuse minors.
• Avoid relying solely on AI tools for art.
• Do not violate other people's privacy using AI.

Different companies that offer AI services, including Amazon, have their own policies and best practice guidelines, so you should always look at these before you start using the tools.

In Summary

There's been a large amount of debate around whether or not people should be allowed to copyright AI content. As generative artificial intelligence tools are a relatively new technological development in the digital world, it's only in recent times that we've seen copyright law for AI looked at. When it comes to AI copyright for writers, photographers, musicians, artists, and other creatives, it is allowable to use AI to a minimal extent. However, it is vital to remember that if you want to copyright your work, you have to have creative control, not the AI tool. If you are looking to protect a piece of work you have made and AI was involved in the process, you should read the Copyright Office guidelines on AI and ensure you have followed AI copyright best practices.