Register of Copyrights Shira Perlmutter Jumps into the Great AI Debate at IPWatchdog LIVE

On day two of IPWatchdog LIVE 2024, IPW Founder and CEO Gene Quinn sat down with Register of Copyrights Shira Perlmutter to discuss the question on everyone’s mind across nearly every sector and sphere of IP practice—from registration to enforcement and beyond, how will AI change the game?

Perlmutter is the first Copyright Office Register to attend IPWatchdog LIVE. She told attendees about her journey from a career as a professional singer into government, which she was introduced to by former Register Marybeth Peters in the 1990s. Perlmutter eventually landed at the U.S. Patent and Trademark Office (USPTO) as Chief Policy Officer and Director of International Affairs in 2012, where she served until her appointment to the U.S. Copyright Office (USCO) in 2020.

Perlmutter first highlighted three key Office initiatives she wants everyone to be aware of: 1) the USCO is “deep in the midst” of modernizing all its services, with the result so far that “close to 90% of all recordations are now made online”; 2) she has hired a Chief Economist for the Office for the first time, who has produced several reports, including a recent one on the geography of copyright registrations; and 3) the Office has been pleased with the results so far of the first ever small claims court for copyright, the Copyright Claims Board, which was established under the “Copyright Alternative in Small-Claims Enforcement (CASE) Act of 2020.” Nearly 1,000 claims have been filed with the CCB so far. While there was initially some fear that respondents would all simply opt out of the fully voluntary system, that has not panned out, Perlmutter said. “We’ve found only [around] 20% are opting out. And a fairly substantial portion end in settlement.”

Quinn shared his concerns that the CCB would be abused by copyright trolls, but Perlmutter said such concerns have proven to be unwarranted. The damages amount that can be obtained at the CCB is far lower ($30,000) than what trolls could win in federal court, and the copyright claims officers also have the power to sanction bad actors, she said, adding: “They have exercised those powers a couple of times already.”

AI and Copyright Will Be OK—But Will the Rest of Us?

Turning to the topic of the hour, Quinn asked Perlmutter how she feels about the impact AI is ultimately going to have on the world. “I’m quite optimistic we will resolve the copyright issues,” she remarked. “I’m less comfortable about what it means for humankind.”

The Copyright Office has been steeped in AI issues for several years now, kicking off with the well-known example of Stephen Thaler, who attempted to register a work made by his “Creativity Machine”—titled “A Recent Entrance to Paradise”—in 2018. On the application, Thaler listed the Creativity Machine as the author of the work and indicated himself to be the claimant, with a transfer statement explaining he acquired ownership of the work because of his “ownership of the machine.” The Office ultimately rejected the application, but that fight is continuing in federal court today.

Even more recently, Jason Allen, the author of the two-dimensional digital artwork, titled “Théâtre D’opéra Spatial,” which was rejected by the Office last year, filed a request for declaratory judgment with the U.S. District Court for the District of Colorado asking the court to find that his work is eligible for copyright registration. The Office told Allen he must disclaim the AI-generated content, but Allen is arguing the time and effort he put into creating the work meets the originality standard.

The USCO announced a new statement of policy on “Works Containing Material Generated by Artificial Intelligence” in March 2023. According to the policy, the Office will grant registrations containing AI-generated content if the work also contains enough human authorship to support copyright protection. Where AI-generated works also contain enough human authorship to support copyright protection, the Office will grant registration of “the human-authored aspects of the work,” but the AI-generated portions must be disclaimed and the use of AI tools disclosed.

Perlmutter said Tuesday that “hundreds” of registrations containing AI-generated content have been granted since the guidance.

Quinn and Perlmutter also discussed the hot topic of generative AI (GAI) companies being sued for infringement due to their training data including large troves of copyrighted works. The USCO is not a party to these cases but is watching them closely.

The Office has also weighed in on the need for legislation to create a right for individuals to control digital replicas of their voice and likeness in a recent report. This is part one of the agency’s multi-part report on issues related to the exploding use of GAI platforms, which the Office undertook on its own volition in response to public conversation and interest.

On the same day that the Office issued its report, a group of senators introduced a bill—the “NO FAKES Act”—that would establish a federal property right for every individual in their own voice and likeness. It was not in response to or conjunction with the Office’s report, however.

Perlmutter closed by telling Quinn that AI “raises profound questions” and therefore “this is the conversation that’s going to go on for a long time.”

“It’s an exciting time to be working in copyright, but a challenging time,” she added.

Day two of IPWatchdog LIVE 2024 also included more than a dozen sessions on topics ranging from the fate of march-in rights and Section 101 to trade secrets, IP at and before the border, antitrust , multiple networking breaks, a cocktail reception, and much more. Be sure to catch all the action in March at our fifth annual LIVE event.

This article was updated on October 1 to clarify that “nearly” 1,000 CCB claims have been filed, and not all have been heard yet.