The U.S. Copyright Office: Artificial Intelligence and Emerging Challenges

November 22, 2024

By Atreya Mathur

Summarized from the Testimony of Register Shira Perlmutter for the Oversight Hearing on November 13, 2024 (before the Senate Committee on the Judiciary, Subcommittee on Intellectual Property) which can be heard HERE.

On November 13, 2024, Shira Perlmutter, the Register of Copyrights and Director of the U.S. Copyright Office (USCO), testified before the Senate Subcommittee on Intellectual Property.^[1] Her detailed account of the Office’s accomplishments, challenges, and policy priorities illuminated the many ways technology—particularly artificial intelligence—is reshaping the copyright landscape.^[2]

At the heart of her testimony was a call to balance innovation and protection, to ensurethat copyright law evolves to meet the demands of the digital age while safeguarding the rights of creators.

Addressing AI and Copyright

Artificial intelligence emerged as a focal point of the testimony, reflecting its transformative impact on creative industries. Perlmutter outlined several unresolved legal and ethical challenges tied to AI, beginning with the question of authorship. Current copyright law is clear that only works created by humans qualify for protection, which excludes content generated entirely by AI systems. This principle reinforces the longstanding notion that copyright exists to protect human creativity.

Complications, however, arise in hybrid works, where human input combines with AI-generated content. In hybrid works, the human author’s contributions may be eligible for copyright protection, but the determination is highly fact-specific. As AI tools become more advanced, distinguishing between human and machine contributions will require nuanced analysis.

Another contentious issue discussed was the training of AI systems using copyrighted material. Many generative AI tools rely on vast datasets, often drawn from copyrighted works, to “learn” and produce outputs. The central legal question is whether this use qualifies as “fair use” under U.S. copyright law. Proponents of the fair use theory argue that use of copyrighted materials to train AI models is transformative, as the patterns and structures learned are entirely different from the material ingested. Opponents, however, caution that such use can undercut existing markets for creative content, such as photography, music, and literature.

“I believe there are about three dozen court cases currently pending, several of them class actions, brought by copyright owners from various sectors. As of now, there have not been any court decisions addressing the critical fair use issue, but I expect we’ll start to see them in the next year or so.

From the comments we received on this issue, the majority expressed the opinion that existing U.S. copyright law, particularly the fair use doctrine, is adequate to address these challenges. However, there was significant divergence of opinion on what types of uses of copyrighted works in the development of AI systems and tools qualify as fair use and what types do not. This will be explored thoroughly in our report. It is interesting to note that the prevailing view is that no legal changes are necessary at this point—it’s more a matter of how the law should be applied. That said, once court decisions begin to emerge, it’s possible that some parties will approach Congress requesting legislative changes. If that happens, we’ll seek input from the talented teams on your staff.”^[3]

– Shira Perlmutter

The testimony also noted that the USCO has flagged emerging concerns with AI systems’ ability to create digital replicas of individuals, including their voices and likenesses. Without robust legal protections, these tools could facilitate widespread misuse, threatening both privacy and economic interests. In a July 2024 report, the Office recommended that Congress establish a federal right to prevent the unauthorized creation and distribution of such digital replicas, while also respecting First Amendment safeguards for freedom of expression.

Other Developments:

The Copyright Claims Board: Expanding Access to Justice

Perlmutter also highlighted the success of the Copyright Claims Board (CCB), which provides a simpler, faster alternative to federal court for resolving small copyright disputes. Since its establishment in 2022, the CCB has handled over 1,000 cases, with many litigants representing themselves. This accessibility has empowered small creators who might otherwise lack the resources to defend their rights.

The CCB’s impact is particularly pronounced in the visual arts, which account for 40% of its cases, followed by audiovisual works (21%) and literary content (13%). Its streamlined processes and emphasis on mediation have enabled faster resolutions, with nearly 90 cases settled outside the courtroom. By removing barriers to enforcement, the CCB advances the broader goal of making copyright protection more equitable and accessible.

Modernizing Infrastructure for the Digital Age

The testimony additionally underscored the USCO’s commitment to modernization, particularly through its flagship Enterprise Copyright System (ECS). This project aims to overhaul the Office’s infrastructure by integrating registration, recordation, and public records into a unified digital system. The new recordation system, for instance, has replaced cumbersome paper-based processes, cutting processing times from months to weeks. Similarly, the Copyright Public Records System (CPRS) now provides advanced search capabilities for accessing decades of copyright data online.

Efforts to digitize historical records have made over 3.25 million physical records accessible to the public, a crucial step in preserving the nation’s cultural heritage. These initiatives not only improve efficiency, but also enhance transparency and access for creators, researchers, and the public.

Economic Insights and Public Engagement

To better understand the broader impacts of copyright law, the USCO has expanded its research capabilities, hiring its first Chief Economist in 2022. The resulting reports, such as an analysis of copyright registrations by geography and an examination of COVID-19’s effects on creative industries, provide valuable data that informs policymaking.

Outreach remains another cornerstone of the Office’s strategy. In 2024, it hosted or participated in over 200 events, ranging from webinars to in-person workshops. These efforts aim to demystify copyright law for a diverse audience, including creators, businesses, and the general public.

Way Forward: AI, Fair Use, and Legislative Needs

“What’s critical, however, is finding a balance.On one hand, we must avoid impeding the development of this exciting technology. On the other, we need to ensure that the unique qualities of human creativity continue to thrive. Striking that balance is a significant challenge, and we aim to address it in the report.”^[4]

– Shira Perlmutter

Perlmutter’s testimony revealed a vision for the future of copyright in the age of AI. The challenges posed by generative AI are vast and range from clarifying fair use standards to addressing the economic impact on creators. The USCO’s phased reports on AI-related issues, expected to continue through 2025, will play a critical role in shaping the national conversation. Legislative action may also be needed to fill gaps in existing laws, particularly concerning digital replicas and the training of AI systems. The testimony emphasized that any new measures should strike a careful balance—protecting creators’ rights without stifling innovation.

Shira Perlmutter’s testimony also painted the picture of an Office working diligently to adapt to an era of rapid technological change. From modernizing infrastructure to addressing complex questions about AI and copyright, the USCO seems to be positioning itself as a global leader in intellectual property law.

About the Author

Atreya Mathur is the Director of Legal Research at the Center for Art Law.

Bibliography:

1. Testimony of Shira Perlmutter (Register of Copyrights and Director), U.S. Copyright Office, Oversight Hearing before the Subcommittee on Intellectual Property; Committee on the Judiciary of the U.S. Senate (November 13, 2024), available at https://docs.publicnow.com/viewDoc?filename=123967%5CEXT%5CF7C5BFA7DA3B413A8E9A658E563D0DFC570AFE24_7D4A029E996ECEA314BD70A3696E427F133E6515.PDF; recording of the testimony available at https://www.youtube.com/watch?v=XOvmySFFhH0&t=1209s ↑
2. Id. ↑
3. Id. ↑
4. Id. ↑