Subcommittee on Intellectual Property of the Senate Judiciary Committee had a supervision hearing yesterday in which Register of Copyrights Shira Perlmutter told members of the Subcommittee that the Bureau is still working to get parts two and three out of its promised report on copyright and artificial intelligence by the end of this year.

The first part of the report was published at the end of July and focused on the copyright implications of AI-created digital replicas. The report recommended a federal law that would create a new form of property right for a person’s digital replica to discourage the creation of realistic but false representations of individuals. On the same day the report was issued, a group of senators introduced a bill— “Cultivating Originals, Promoting the Arts, and Keeping Entertainment Safe Act of 2024” (NO FAKES Act) – to create the right of individuals to control digital replicas of their voice and likeness. Perlmutter said in yesterday’s hearing that she was pleased to see the bill and that the report and the bill agree on all the most important points, such as that the right should cover all people, should there are limits on free transferability and the creation of a safe harbor to encourage rapid removal of unauthorized replicas.

The NO FAKES Act was introduced by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN) and Thom Tillis (R-NC) in July and would establish a federal property right to each individual in his voice and likeness. There are exceptions for news, broadcast, advertising/marketing and documentary use, public criticism or commentary, and “frivolous or negligible” use, among others. An “actual knowledge” standard would be required to prove liability. The right is not transferable during the lifetime of the right holder, but is allowable for a period of up to 10 years (or 5 years for minors under 18) and expires 70 years after the person’s death. There are provisions for post-mortem transfer of title and renewal procedures.

The bill would also establish a notice and takedown process to remove unauthorized replicas and would not hold platforms liable for linking or sending users to unauthorized content, “as long as the online service removes or disables access to the unauthorized digital replica as soon as technically and practically feasible after receiving notification of an infringement complained. ” Online service providers must also designate an agent as a point of contact for reporting violations.

Asked by subcommittee chairman Chris Coons (D-DE) what keeps her up at night when it comes to AI, Perlmutter said “the speed at which everything is developing.” In September, during IPWatchdog LIVE 2024, Perlmutter told LIVE attendees that while she is confident that copyright and artificial intelligence issues will eventually be resolved, she is “less comfortable with what it means for humanity.”

Perlmutter recently came under fire from House Administration Committee Chairman Bryan Steil (R-WI), who sent a letter on TuesdayOct. 29 to the Office, requesting an update to the AI ​​report, which Steil charged was no longer on track to be published by the stated target dates. Steil’s letter asked the Office to explain the delay in issuing parts two and three, which Register of Copyrights Shira Perlmutter pointed out in a supervisory hearing by the House Administration Committee would be published before the end of the summer and in the fall, respectively. “The importance of these reports cannot be overstated,” Steil wrote, explaining that copyright owners rely on the Office to provide clear guidance. “The lack of these reports creates uncertainty for industries already facing AI challenges and prevents lawmakers from crafting effective policies,” the letter added.

Perlmutter commented in the hearing that “we tried to set and meet our ambitious deadlines” and the goal remains to get the rest of the report out by the end of the year, but that her key concern is to be “accurate. and caring.”

Future reports will include recommendations on how to approach the copyright of materials created using GAI and the legal implications of training on copyrighted works. The latter is the most controversial and may actually require additional legislation focusing on transparency requirements.

The office received more than 10,000 comments on it Notice of Inquiry issued in August 2023 to solicit public comment on the intersection of copyright law and artificial intelligence (AI). In particular, the comments were mostly original and substantive, rather than duplicated, which made the review process lengthy. Perlmutter told the Subcommittee that nearly all commenters said that the existing fair use framework is adequate to address issues related to the use of copyrighted works in generative AI (GAI) model training, but that “views differ strongly on the types of uses that qualify as fair use”. There are currently about three dozen pending court cases addressing this issue, but no decisions. Once the decisions start coming out, Congress may be asked to step in, Perlmutter said.

In an exchange with Sen. Peter Welch (D-VT), Perlmutter said that GAI companies’ rejection of transparency about what they’re doing has been used to train their AI models to focus on what kind of transparency — how much and in what degree of detail. Some companies claim that it would be impossible to identify all the works used.

“So the AI ​​knows everything except what the artist needs to know to determine if their work has been used to benefit the AI,” Welch commented. Perlmutter agreed that it’s important to have that level of transparency so copyright owners can make decisions about what they want to do.