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Emerging AI technology raises questions about safeguarding intellectual property

Emerging AI technology, particularly generative artificial intelligence, presents new quandaries in the arena of intellectual property law.

Lawmakers and legal experts are grappling with the implications of this rapidly advancing field for copyright protection while aiming to retain America's competitive edge globally. As patent law comes into focus, strategies for sensible regulation are being deliberated in Congress.

In the Senate Judiciary subcommittee meeting on intellectual property held this Wednesday, the subject of patents and innovation was intensely discussed, underlining the increasing focus on AI-related concerns across the political spectrum.

In a prior subcommittee hearing on AI, Senators from both parties voiced concerns about how AI products, trained on language models, might impact creatives such as artists and writers.

Concern among lawmakers escalates The latest hearing put intellectual property issues at the forefront, with a goal to determine effective regulation without stifling America's global competitiveness in this sector.

The intellectual property subcommittee chairman, Sen. Chris Coons (D-Del.), emphasized the importance of including IP considerations in any ongoing AI regulations, with an appeal to alter patent eligibility laws to better protect key AI innovations.

Meanwhile, subcommittee ranking member Sen. Thom Tillis (R-N.C.) stressed the need to balance regulation to ensure America's continued leadership in the industry.

SoundExchange CEO, Mike Huppe, underscored the importance of lawmakers understanding AI and the challenges it poses. He advocated for proactive, well-considered legislation and regulations, stressing that these discussions are crucial before AI becomes too advanced for effective control.

The OpenAI's ChatGPT Effect The general apprehension around generative AI has been mounting in Congress since the introduction of OpenAI’s ChatGPT. The concerns extend beyond intellectual property, touching on potential national security threats, workforce reduction, and spread of harmful misinformation.

Congress will also hold three bipartisan briefings on AI to enhance their understanding and preparedness on this critical subject.

There is debate about the application of copyright law to the training data used by products like ChatGPT and its rivals, as well as image-generating AI like OpenAI's DALL-E.

George Washington University Law School's Robert Brauneis suggested that most litigation against AI companies for potential copyright infringement would hinge on the interpretation of the “fair use” exception in copyright law.

The Debate over AI-Created Work Fair use permits unlicensed use of copyrighted work under certain conditions, primarily assessed under four factors according to the U.S. Copyright Office. Additional factors may be considered on a case-by-case basis.

Brauneis speculated that litigation over AI-created work may not reach courts for at least five years and suggested Congress would wait to intervene. He also proposed a potential argument favoring AI learning from existing work, drawing parallels with human creators.

The main issue would be whether the AI-produced work is substantially similar to the original, and not the learning process itself. However, he also pointed out a counter-argument: that AI-generated output could compete in the same market as its input, leading to unfair competition.

This rapidly evolving field also raises questions about the copyright eligibility of AI-generated work. Currently, only human creators qualify for copyright protection. The implications of an AI-generated piece of work gaining copyright protection remains a grey area under U.S. law, adding another complex dimension to this unfolding narrative.


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