The Heart of the Matter: Copyright, AI Training, and LLMs; SSRN, November 1, 2024

 Daniel J. Gervais, Vanderbilt University - Law School

Noam Shemtov, Queen Mary University of London, Centre for Commercial Law Studies

Haralambos Marmanis, Copyright Clearance Center

Catherine Zaller Rowland, Copyright Clearance Center 

SSRN; The Heart of the Matter: Copyright, AI Training, and LLMs

"Abstract

This article explores the intricate intersection of copyright law and large language models (LLMs), a cutting-edge artificial intelligence technology that has rapidly gained prominence. The authors provide a comprehensive analysis of the copyright implications arising from the training, fine-tuning, and use of LLMs, which often involve the ingestion of vast amounts of copyrighted material. The paper begins by elucidating the technical aspects of LLMs, including tokenization, word embeddings, and the various stages of LLM development. This technical foundation is crucial for understanding the subsequent legal analysis. The authors then delve into the copyright law aspects, examining potential infringement issues related to both inputs and outputs of LLMs. A comparative legal analysis is presented, focusing on the United States, European Union, United Kingdom, Japan, Singapore, and Switzerland. The article scrutinizes relevant copyright exceptions and limitations in these jurisdictions, including fair use in the US and text and data mining exceptions in the EU. The authors highlight the uncertainties and challenges in applying these legal concepts to LLMs, particularly in light of recent court decisions and legislative developments. The paper also addresses the potential impact of the EU's AI Act on copyright considerations, including its extraterritorial effects. Furthermore, it explores the concept of "making available" in the context of LLMs and its implications for copyright infringement. Recognizing the legal uncertainties and the need for a balanced approach that fosters both innovation and copyright protection, the authors propose licensing as a key solution. They advocate for a combination of direct and collective licensing models to provide a practical framework for the responsible use of copyrighted materials in AI systems.

This article offers valuable insights for legal scholars, policymakers, and industry professionals grappling with the copyright challenges posed by LLMs. It contributes to the ongoing dialogue on adapting copyright law to technological advancements while maintaining its fundamental purpose of incentivizing creativity and innovation."

US Trademark Office cancels Marvel, DC's 'Super Hero' marks; Reuters, September 26, 2024

Blake Brittain , Reuters; US Trademark Office cancels Marvel, DC's 'Super Hero' marks

"A U.S. Trademark Office tribunal has canceled a set of "Super Hero" trademarks jointly owned by comic giants Marvel and DC at the request of a London-based comic book artist, according to a Thursday order.

The USPTO's Trademark Trial and Appeal Board ruled for S.J. Richold's Superbabies Ltd after Disney's Marvel and Warner Bros' DC did not file an answer to Superbabies' request to invalidate the marks.

Spokespeople and attorneys for Marvel and DC did not immediately respond to requests for comment. Superbabies attorney Adam Adler of Reichman Jorgensen Lehman & Feldberg said in a statement that the ruling was "not just a win for our client but a victory for creativity and innovation."

"By establishing SUPER HEROES' place in the public domain, we safeguard it as a symbol of heroism available to all storytellers," Adler said."

USPTO issues AI subject matter eligibility guidance; United States Patent and Trademark Office (USPTO), July 16, 2024

 United States Patent and Trademark Office (USPTO) ; USPTO issues AI subject matter eligibility guidance

"The U.S. Patent and Trademark Office (USPTO) has issued a guidance update on patent subject matter eligibility to address innovation in critical and emerging technologies, including in artificial intelligence (AI). This guidance update will assist USPTO personnel and stakeholders in determining subject matter eligibility under patent law (35 § U.S.C. 101) of AI inventions. This latest update builds on previous guidance by providing further clarity and consistency to how the USPTO and applicants should evaluate subject matter eligibility of claims in patent applications and patents involving inventions related to AI technology. The guidance update also announces three new examples of how to apply this guidance throughout a wide range of technologies. 

The guidance update, which goes into effect on July 17, 2024, provides a background on the USPTO’s efforts related to AI and subject matter eligibility, an overview of the USPTO’s patent subject matter eligibility guidance, and additional discussion on certain areas of the guidance that are particularly relevant to AI inventions, including discussions of Federal Circuit decisions on subject matter eligibility. 

“The USPTO remains committed to fostering and protecting innovation in critical and emerging technologies, including AI,” said Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO. “We look forward to hearing public feedback on this guidance update, which will provide further clarity on evaluating subject matter eligibility of AI inventions while incentivizing innovations needed to solve world and community problems.” 

The three new examples provide additional analyses under 35 § U.S.C. 101 of hypothetical claims in certain situations to address particular inquiries, such as whether a claim recites an abstract idea or whether a claim integrates the abstract idea into a practical application. They are intended to assist USPTO personnel in applying the USPTO’s subject matter eligibility guidance to AI inventions during patent examination, appeal, and post-grant proceedings. The examples are available on our AI-related resources webpage and our patent eligibility page on our website.  

The USPTO continues to be directly involved in the development of legal and policy measures related to the impact of AI on all forms of intellectual property. The guidance update delivers on the USPTO’s obligations under the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence o provide guidance to examiners and the public on the impact of AI and issues at the intersection of AI and IP, including patent subject matter eligibility. This follows our announcement earlier this year on Inventorship guidance for AI-assisted inventions, as well as AI guidance for practitioners and a request for comments on the impact of AI on certain patentability considerations, including what qualifies as prior art and the assessment of the level of ordinary skills in the art (comments accepted until July 29, 2024). 

The full text of the guidance update on patent subject matter eligibility is available on our Latest AI news and reports webpageand the corresponding examples are available on our AI-related resources webpage. The USPTO will accept public comments on the guidance update and the examples through September 16, 2024. Please see the Federal Register Notice for instructions on submitting comments."

Will the rise of AI spell the end of intellectual property rights?; The Globe and Mail, May 27, 2024

 SHEEMA KHAN , The Globe and Mail; Will the rise of AI spell the end of intellectual property rights?

"AI’s first challenge to IP is in the inputs...

Perhaps the question will become: Will IP be the death of AI?...

The second challenge relates to who owns the AI-generated products...

Yet IP rights are key to innovation, as they provide a limited monopoly to monetize investments in research and development. AI represents an existential threat in this regard.

Clearly, the law has not caught up. But sitting idly by is not an option, as there are too many important policy issues at play."

The Generative AI Copyright Disclosure Act of 2024: Balancing Innovation and IP Rights; The National Law Review, May 13, 2024

  Danner Kline of Bradley Arant Boult Cummings LLP, The National Law Review; The Generative AI Copyright Disclosure Act of 2024: Balancing Innovation and IP Rights

"As generative AI systems become increasingly sophisticated and widespread, concerns around the use of copyrighted works in their training data continue to intensify. The proposed Generative AI Copyright Disclosure Act of 2024 attempts to address this unease by introducing new transparency requirements for AI developers.

The Bill’s Purpose and Requirements

The primary goal of the bill is to ensure that copyright owners have visibility into whether their intellectual property is being used to train generative AI models. If enacted, the law would require companies to submit notices to the U.S. Copyright Office detailing the copyrighted works used in their AI training datasets. These notices would need to be filed within 30 days before or after the public release of a generative AI system.

The Copyright Office would then maintain a public database of these notices, allowing creators to search and see if their works have been included. The hope is that this transparency will help copyright holders make more informed decisions about licensing their IP and seeking compensation where appropriate."

CMU Joins $110M U.S.-Japan Partnership To Accelerate AI Innovation; Carnegie Mellon University, April 11, 2024

 Kelly Saavedra, Carnegie Mellon University; CMU Joins $110M U.S.-Japan Partnership To Accelerate AI Innovation

"Carnegie Mellon University and Keio University have announced they will join forces with one another and with industry partners to boost AI-focused research and workforce development in the United States and Japan. The partnership is one of two new university partnerships between the two countries in the area of artificial intelligence announced in Washington, D.C., April 9 at an event hosted by U.S. Secretary of Commerce Gina Raimondo.

The collaboration joins two universities with outstanding AI programs and forward-looking leaders with leading technology companies committed to providing funding and resources aimed at solving real-world problems. 

CMU President Farnam Jahanian was in Washington, D.C., for the signing ceremony held in the Department of Commerce's Research Library, during which the University of Washington and the University of Tsukuba agreed to a similar collaboration."

Your newsroom needs an AI ethics policy. Start here.; Poynter, March 25, 2024

Kelly McBride , Poynter; Your newsroom needs an AI ethics policy. Start here.

"Every single newsroom needs to adopt an ethics policy to guide the use of generative artificial intelligence. Why? Because the only way to create ethical standards in an unlicensed profession is to do it shop by shop.

Until we create those standards — even though it’s early in the game — we are holding back innovation.

So here’s a starter kit, created by Poynter’s Alex Mahadevan, Tony Elkins and me. It’s a statement of journalism values that roots AI experimentation in the principles of accuracy, transparency and audience trust, followed by a set of specific guidelines.

Think of it like a meal prep kit. Most of the work is done, but you still have to roll up your sleeves and do a bit of labor. This policy includes blank spaces, where newsroom leaders will have to add details, saying “yes” or “no” to very specific activities, like using AI-generated illustrations.

In order to effectively use this AI ethics policy, newsrooms will need to create an AI committee and designate an editor or senior journalist to lead the ongoing effort. This step is critical because the technology is going to evolve, the tools are going to multiply and the policy will not keep up unless it is routinely revised."

AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions; United States Patent and Trademark Office (USPTO), February 12, 2024

 Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO, United States Patent and Trademark Office (USPTO) ; Director's Blog: the latest from USPTO leadership

AI and inventorship guidance: Incentivizing human ingenuity and investment in AI-assisted inventions

"Today, based on the exceptional public feedback we’ve received, we announced our Inventorship Guidance for AI-Assisted Inventions in the Federal Register – the first of these directives. The guidance, which is effective on February 13, 2024, provides instructions to examiners and stakeholders on how to determine whether the human contribution to an innovation is significant enough to qualify for a patent when AI also contributed. The guidance embraces the use of AI in innovation and provides that AI-assisted inventions are not categorically unpatentable. The guidance instructs examiners on how to determine the correct inventor(s) to be named in a patent or patent application for inventions created by humans with the assistance of one or more AI systems. Additionally, we’ve posted specific examples of hypothetical situations and how the guidance would apply to those situations to further assist our examiners and applicants in their understanding."

Inventorship guidance for AI-assisted inventions webinar; United States Patent and Trademark Office (USPTO), March 5, 2024 1 PM - 2 PM ET

 United States Patent and Trademark Office (USPTO) ; Inventorship guidance for AI-assisted inventions webinar

"The United States Patent and Trademark Office (USPTO) plays an important role in incentivizing and protecting innovation, including innovation enabled by artificial intelligence (AI), to ensure continued U.S. leadership in AI and other emerging technologies (ET).

The USPTO announced Inventorship Guidance for AI-Assisted Inventions in the Federal Register. This guidance is pursuant to President Biden's Executive Order 14110 on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (October 30, 2023) with provisions addressing IP equities. The guidance, which is effective on February 13, 2024, provides instructions to USPTO personnel and stakeholders on determining the correct inventor(s) to be named in a patent or patent application for inventions created by humans with the assistance of one or more AI systems. 

The USPTO will host a webinar on Inventorship Guidance for AI-Assisted Inventions on Tuesday, March 5, from 1-2 p.m. EST. USPTO personnel will provide an overview of the guidance and answer stakeholder questions relating to the guidance.

This event is free and open to the public, but virtual space is limited, so please register early."

EU countries strike deal on landmark AI rulebook; Politico, February 2, 2024

GIAN VOLPICELLI, Politico ; EU countries strike deal on landmark AI rulebook

"European Union member countries on Friday unanimously reached a deal on the bloc’s Artificial Intelligence Act, overcoming last-minute fears that the rulebook would stifle European innovation.

EU deputy ambassadors green-lighted the final compromise text, hashed out following lengthy negotiations between representatives of the Council, members of the European Parliament and European Commission officials...

Over the past few weeks, the bloc’s top economies Germany and France, alongside Austria, hinted that they might oppose the text in Friday’s vote...

Eventually, the matter was resolved through the EU’s familiar blend of PR offensive and diplomatic maneuvering. The Commission ramped up the pressure by announcing a splashy package of pro-innovation measures targeting the AI sector, and in one fell swoop created the EU’s Artificial Intelligence Office — a body tasked with enforcing the AI Act...

A spokesperson for German Digital Minister Volker Wissing, the foremost AI Act skeptic within Germany’s coalition government, told POLITICO: "We asked the EU Commission to clarify that the AI Act does not apply to the use of AI in medical devices.".

A statement the European Commission, circulated among EU diplomats ahead of the vote and seen by POLITICO, reveals plans to set up an “expert group” comprising  EU member countries’ authorities. The group’s function will be to “ advise and assist” the Commission in applying and implementing the AI Act...

The AI Act still needs the formal approval of the European Parliament. The text is slated to get rubber-stamped at the committee level in two weeks, with a plenary vote expected in April."

Marybeth Peters: Renaissance Woman of Copyright; New York City Bar Association Podcasts, December 13, 2023

 New York City Bar Association Podcasts; Marybeth Peters: Renaissance Woman of Copyright

"Lawyer. Leader. Public Servant. Trailblazer. Friend.

Marybeth Peters, the second-longest serving Register of Copyrights (1994 - 2010), died on September 29, 2022, in Washington, D.C., at the age of 83. With her passing, Register Peters left behind a lasting and far-reaching legacy in her storied 40-plus year career as a distinguished attorney, respected copyright law expert, and the director of the U.S. Copyright Office, where she helped shape and implement critical new laws, including the 1998 Digital Millennium Copyright Act, the Sonny Bono Copyright Term Extension Act, and the Uruguay Round Agreements Act among others. In addition, Register Peters was remembered as a mentor, teacher, and friend who touched the lives of everyone around her with grace and her unforgettable laugh.

Presented by the New York City Bar Copyright and Literary Property Committee, committee member Theodora Fleurant, a trademark attorney based in New York City, and Jose Landivar, an Associate at Coates IP, lead an unforgettable series of conversations with some of the people closest to Register Peters to look back on her life and legacy, including:

•	Shira Perlmutter, the current Register of Copyrights and Director of the U.S. Copyright Office
•	Maria Pallante, President and CEO of the Association of American Publishers who formerly served as the 12th Register of Copyrights
•	Richard Dannay, Counsel at Cowan, Liebowitz & Latman, P.C.
•	Eric Schwartz, Partner at Mitchell Silberberg & Knupp LLP, and former Acting General Counsel and Senior Legal Advisor to the Register of Copyrights
•	David Carson, current Copyright Office Claims Officer who, formerly served as head of the Copyright Policy Team in the Office of Policy and International Affairs at the U.S. Patent and Trademark Office and as General Counsel of the U.S. Copyright Office

This podcast paints a fascinating portrait of a leading U.S. and international copyright law expert. It seeks to inspire listeners with lessons in leadership, courage, innovation, and dedicated public service.

This podcast would not have been possible without the support of the U.S. Copyright Office (https://www.copyright.gov/) and audio provided by the Copyright Clearance Center.

Photo: Courtesy of the U.S. Copyright Office.

Access a transcript of this episode here: https://bityl.co/MvSf"

Biden pressed to support intellectual property waiver for COVID-19 vaccines; Marketplace, November 26, 2021

Lily Jamali, Marketplace; Biden pressed to support intellectual property waiver for COVID-19 vaccines

"Anne Pritchett, senior vice president with the industry group PhRMA, said that lifting patent waivers for COVID vaccines could backfire in the next global health crisis.

"We don’t want to be deterring innovation by saying to companies, ‘There’s no incentive for you to invest in that, because we’re just going to take your IP and give it away,'” she said. 

Countries in the EU, plus Switzerland and the U.K., support that view."

Life during lockdown might be much better if technophobia hadn’t held back innovation; The Washington Post, April 30, 2020

Jason Feifer , The Washington Post; Life during lockdown might be much better if technophobia hadn’t held back innovation

"Now that much of the world is in lockdown, relying on technology that many viewed with worry and suspicion mere months ago, the consequences of that fearfulness are coming into focus...

Too bad so many bosses once resisted allowing employees to work from home — even though research has found that remote workers are more productive, take shorter breaks, take less time off and stay with their companies longer. That resistance inevitably limited the marketplace for video tools, leaving only a few options available when the pandemic crisis struck.

Unfortunately, that’s how things tend to go with new technologies. Fear leads to smaller markets, reducing investment by innovators.

This story has repeated itself across time and culture...

How will we handle the next wave of innovation? That will be our greatest collective challenge. The pessimists will surely have something to say. It would be good to think back to this moment, recalling the many ways that feared technologies came to be seen as a blessing. Then we can encourage something that really does improve lives. It isn’t resistance to change. It’s change."

Rumored executive order would change landscape of UC subscription partnerships; The Daily Californian, January 30, 2020

Alexandra Casey, The Daily Californian; Rumored executive order would change landscape of UC subscription partnerships

"Prominent Nobel laureate and chief scientific officer of New England Biolabs Rich Roberts has no online access to a paper he co-authored because his institution lacks a subscription to academic journal Nature Microbiology.

Roberts is one of 21 American Nobel laureates who submitted an open letter to President Donald Trump on Monday urging him to approve a rumored plan to make federally funded research free of cost and immediately accessible after publication. UC Berkeley’s Randy Schekman, who founded eLife — an open access scientific journal — led the Nobel laureates in their letter...

“This would effectively nationalize the valuable American intellectual property that we produce and force us to give it away to the rest of the world for free,” according to the letter from the publishers. “This risks reducing exports and negating many of the intellectual property protections the Administration has negotiated with our trading partners.”

The letter added that the cost shift could place an “additional burden” on taxpayers and undermine both the marketplace and American innovation."

It’s Copyright Week 2020: Stand Up for Copyright Laws That Actually Serve Us All; Electronic Frontier Foundation (EFF), January 20, 2020

Katharine Trendacosta, Electronic Frontier Foundation (EFF); It’s Copyright Week 2020: Stand Up for Copyright Laws That Actually Serve Us All

"We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what's at stake and what we need to do to make sure that copyright promotes creativity and innovation...

We continue to fight for a version of copyright that does what it is supposed to. And so, every year, EFF and a number of diverse organizations participate in Copyright Week. Each year, we pick five copyright issues to highlight and advocate a set of principles of copyright law. This year’s issues are:

• Monday: Fair Use and Creativity
  Copyright policy should encourage creativity, not hamper it. Fair use makes it possible for us to comment, criticize, and rework our common culture.
• Tuesday: Copyright and Competition
  Copyright should not be used to control knowledge, creativity, or the ability to tinker with or repair your own devices. Copyright should encourage more people to share, make, or repair things, rather than concentrate that power in only a few players.
• Wednesday: Remedies
  Copyright claims should not raise the specter of huge, unpredictable judgments that discourage important uses of creative work. Copyright should have balanced remedies that also provide a real path for deterring bad-faith claims.
• Thursday: The Public Domain
  The public domain is our cultural commons and a crucial resource for innovation and access to knowledge. Copyright should strive to promote, and not diminish, a robust, accessible public domain.
• Friday: Copyright and Democracy
  Copyright must be set through a participatory, democratic, and transparent process. It should not be decided through back-room deals, secret international agreements, unaccountable bureaucracies, or unilateral attempts to apply national laws extraterritorially.

Every day this week, we’ll be sharing links to blog posts and actions on these topics at https://www.eff.org/copyrightweek and at #CopyrightWeek on Twitter.

As we said last year, and the year before that, if you too stand behind these principles, please join us by supporting them, sharing them, and telling your lawmakers you want to see copyright law reflect them."

Why Patents and Copyrights Matter; Ayn Rand Institute, Janaury 15, 2020

[47 min. Video] Elan Journo, Ayn Rand Institute; Why Patents and Copyrights Matter

"Why do patents and copyrights matter? What do they protect? What to make of the objections against them? For instance: that no one is really hurt by violations of copyrights or patents; or that these rights are obstacles to progress and innovation; or that they’re an unfair, government-granted privilege or favor?   

To explore these issues, I talked to Professor Adam Mossoff, who teaches law at George Mason University. Mossoff is an expert on intellectual property law and policy, who has published extensively in academic journals and popular outlets, including the Wall Street Journal, New York Times, and Politico, among many others. He has testified several times before the Senate and the House of Representatives."

UK Government Plans To Open Public Transport Data To Third Parties; Forbes, December 31, 2019

Simon Chandler, Forbes; UK Government Plans To Open Public Transport Data To Third Parties

"The launch is a significant victory for big data. Occasionally derided as a faddish megatrend or empty buzzword, the announcement of the Bus Open Data Service shows that national governments are willing to harness masses of data and use them to create new services and economic opportunities. Similarly, it's also a victory for the internet of things, insofar as real-time data from buses will be involved in providing users with up-to-date travel info.

That said, the involvement of big data inevitably invites fears surrounding privacy and surveillance."

Food delivery robots from Starship Technologies are coming to Pitt’s Oakland campus; Nextpittsburgh, September 3, 2019

Bill O'Toole, Nextpittsburgh; Food delivery robots from Starship Technologies are coming to Pitt’s Oakland campus

"Stakeholders got their first look at the project last week when the Oakland Planning and Development Corporation (OPDC) held a public meeting where Starship gave a presentation on the project.

The university has confirmed to us that Starship’s service is due to launch later this fall, but the company declined to offer further specifics about the project to NEXTpittsburgh. According to the minutes of the meeting, they plan to begin a staged rollout in mid-September. The fleet will eventually have 25 autonomous rovers carting goods (presumably to hungry students) from campus food vendors such as Forbes Street Market...

The food delivery service poses obvious practical challenges for the flow of traffic and people throughout the bustling neighborhood. According to the minutes of the public meeting, several attendees expressed concerns over the potential for traffic and bicycle accidents.

“It’ll be interesting to see how they interface with people there in the public right of ways,” says Georgia Petropoulos, executive director of the Oakland Business Improvement District, which has no formal role in the project."