Elisa Shupe’s Case; Bending The Law Or Setting A New Trend? USCO Grants Registration To Disabled Veteran’s AI Generated Book

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The question of whether work generated by ChatGPT will be granted the copyright rightfully under the law has been persistent in the area of Intellectual Property Rights, since the advent of Artificial Intelligence. Seems like the dilemma is about to be resolved with the new decision of United Stated Copyright Office(USCO) on Elisa Shupe’s self-published book on Amazon titled “AI Machinations: Tangled Webs and Typed Words”, written extensively using ChatGPT. Published under her pen name Ellen Rae, the book is based on her eventful life as an army veteran advocating for recognition of more gender exclusiveness, making it first of its kind to challenge the traditional laws of human authorship in copyright.

Factual Background

Shupe, a 60-year-old author and army veteran declared 100% disabled by the United States Department of Veterans Affairs resulting in her facing hardships for writing due to cognitive impairments. She applied for copyright registration for her above-mentioned book on October 10, 2023 to the US copyright office. She asserted that completion of her book could not have been possible without the help of generative AI. She highlighted the fact that using generative AI, although unique but was helpful for articulating her thoughts, rather than it being simple automated text along with the commitment of up to 14 hours a day that went into refining her work to be of publishable quality. She wrote that “I seek to copyright the AI-assisted and AI-generated material under an ADA exemption for my many disabilities.”

USCO rejected the registration application after a week on the first instance. An appeal was filed on the given decision with the help of Jonathan Askin, director of Brooklyn Law Incubator and Policy Clinic in the collaboration with Sofia Vescovo, a Brooklyn Law student in January 2024.

Arguments In The Appeal

The appeal was made on the following grounds. Firstly, focusing on Shupe’s disability, rendering her incapable to finish the writing without the external help of ChatGPT. It was argued that her right to use assistive tools of AI is analogous to an amputee using a prosthetic limb. Directing the focus towards the discriminatory attitude of the US Copyright office regarding her disability initially hindering the registration of the novel. Further, the detailed process implemented by Shupe in compilation of the work through AI was submitted. This included her designing the exact prompts for AI for generating the text, further modification and editing. Copyright was argued for the protection of this selection and arrangement. Exhibits were attached showcasing the detailed comparison between original generated text by AI and the complete modification of nearly every sentence published as the final draft in Shupe’s book. Reliance was placed on the decision laid down in copyright of a graphic novel “Zarya and the dawn” by Kris Kashtanova in February 2023. The novel featured images created by AI via Midjourney, while the copyright was not extended for the images itself but for the selection and arrangement.

Judgement

The copyright Office Review Board reversed its stance in April 2024 granting Shupe’s novel copyright registration with a caveat making it a landmark event. The decision was backdated on October 10, 2023 originally when Shupe applied for the registration. The agency presented her with the authorship for “selection, coordination, and arrangement of text generated by artificial intelligence”, meaning the overall work belonged to her, unauthorized reproduction of the whole book would consist of infringement but not that of the actual sentences of the book. Although Shupe asked for approval as a whole, this was considered nuanced victory. The judgement portrayed an openness towards the future of integrating of new generation AI tools with the creative works. During the hearing of the appeal, the USCO didn’t address the grounds of disability but concurred with all the other arguments.

The partial granting of the copyright in this case is called ‘thin copyright’ by the Mathew Sag, a professor of law and AI at Emory University. It’s what I think best describes the exponentially growing discourse around the merging of AI and copyright in the current scenario.

Conclusion

The US still has a set standard where human endeavour is a necessity for granting of copyright protection to any creative work, to which the current decision has made a dent. Similarly, the Indian Courts and the existing legislation have been of the opinion that authorship cannot be rendered to any AI generated work due to lack of legal personhood as per Sec 2 (d)(vi) and Sec 17 of the Copyright Act 1957. The ethical and juridical issues regarding credibility and liability for the AI work is still not settled. However, the Elisa Shupe judgement will likely sway the votes in the favour of AI all over the world. Observing the unprecedented growth of AI and its integration in the society, it is imperative to ask whether India will follow the suit and relax the existing laws or continue to advocate for the human labour and creativity?

Authors: Malabika Boruah, Aishee Choudhury & Sonali Irpache


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