With the rapid proliferation of generative AI, the copyright treatment of AI-created illustrations and texts has garnered significant attention. For businesses and individuals utilizing AI, understanding copyright laws correctly is essential to avoid legal risks.
On March 15, 2024, Japan’s Agency for Cultural Affairs published “Thoughts on AI and Copyright,” presenting comprehensive views on the relationship between generative AI and copyright1. This article provides a detailed explanation of essential points about AI-generated content copyright based on these latest guidelines.
Are AI-Generated Works Protected by Copyright?
Under Japan’s current copyright law, copyrighted works are defined as “creative expressions of human thoughts or emotions.” Since AI is not human, works generated 100% automatically by AI are, in principle, not recognized as copyrighted works.
Conditions for Recognition as Copyrighted Works
However, AI-generated content may be protected as copyrighted works if certain conditions are met. According to the Agency for Cultural Affairs guidelines, the following two requirements must be satisfied:
- Existence of Creative Intent: There must be intent to creatively express human thoughts or emotions in the process of generating AI content
- Creative Contribution: There must be substantial human contribution to achieve specific expressive results in the creative process
Factors considered in judgment include: ①quantity and content of instructions/inputs (prompts, etc.), ②number of generation attempts, and ③selection from multiple generated outputs. Rather than simple prompt generation, it’s important that humans are creatively involved.
Use of Copyrighted Works in AI Development and Learning
A crucial issue in AI development is the use of copyrighted works as learning data. Article 30-4 of the Copyright Act allows the use of copyrighted works without permission from copyright holders for “uses that do not aim to enjoy thoughts or emotions expressed in the works”1.
This is because AI learning processes do not aim to enjoy the expressions of works themselves. However, exceptions may apply in the following cases:
- When copyright holders’ interests are unreasonably harmed
- When additional learning is conducted for the purpose of outputting specific works
Copyright Infringement Risks and Responsibility
Standards for Infringement Judgment
Copyright infringement by AI-generated content is judged by “dependence” and “similarity,” similar to regular copyright infringement:
- Dependence: Accessing another’s work and using it in one’s own creation
- Similarity: Being able to directly perceive the essential characteristics of the original work’s expression
When generative AI creates works closely resembling existing copyrighted works, copyright infringement may occur if these requirements are met.
Responsibility
In principle, AI users bear responsibility when copyright infringement occurs. However, AI developers and service providers may also be held responsible in the following cases:
- When providing functions that encourage the generation of infringing content
- When failing to take appropriate measures to prevent copyright infringement
Note that if AI users were unaware of the infringing nature of works, they would not be subject to criminal penalties or damages as intent or negligence cannot be recognized, with only injunction requests being permitted.
Key Considerations for Businesses and Individuals
Practical Measures for Risk Reduction
The Agency for Cultural Affairs has created a “Checklist & Guidance on AI and Copyright,” showing specific initiatives for stakeholders to reduce risks1. Main points include:
- Pre-use Verification: Confirm the terms of use and source of learning data for AI services
- Prompt Optimization: Avoid prompts that evoke specific copyrighted works
- Generated Content Review: Check for similarity to existing works before use
- Record Keeping: Save records of prompts and generation processes to prove creative contribution
Future Outlook and Challenges
Current legal systems were established before AI creative activities became mainstream. The Agency for Cultural Affairs recognizes the need for continuous consideration and promotes dialogue between generative AI businesses and creators through the “AI and Copyright Stakeholder Network.”
With rapid technological development, legal system revisions may occur in the future. Businesses and individuals need to monitor the latest developments while ensuring appropriate use in accordance with current laws.
The relationship between AI and copyright hinges on a fundamental distinction: copyright protection requires human creative contribution. Japan’s Agency for Cultural Affairs guidelines clarify that purely AI-generated content lacks copyright protection, while content with substantial human creative involvement may qualify as copyrighted works.
For businesses and individuals using AI, the practical implications are clear. Document your creative process, maintain records of human contributions, and verify that AI outputs don’t infringe existing works. While AI development benefits from broad permissions for using copyrighted materials as training data, users remain responsible for ensuring their AI-generated content doesn’t violate others’ rights. As AI technology continues to evolve, staying informed about legal developments and following established guidelines will be essential for responsible AI utilization.
Sources
- AI and Copyright - Agency for Cultural Affairs Official (Thoughts on AI and Copyright)