AI and Copyright: US Copyright Office’s recent report and implications for UK law

In January 2025, the US Copyright Office released its second report on artificial intelligence (AI) and copyright, following its initial study on digital replicas. Part 2, titled the Copyrightability Report, explores whether AI-generated outputs qualify for copyright protection under US law and assesses the threshold of human involvement required to establish authorship.

The findings reaffirm the existing principles of US copyright law while leaving open questions about the role of AI-assisted creativity in the future.

Key findings from the report

The US Copyright Office’s second report confirms that copyright law, as it currently stands, does not require legislative change to address AI-generated works. The key principles set out in the report include:

• Human authorship is essential: US copyright law protects only works created by human authors. AI-generated content, if produced without significant human intervention, is not copyrightable.
• AI as an assistive tool: if an AI system assists a human in creating a work, the output may be protected, but only to the extent that human creativity is perceptible in the final work.
• Insufficient control via prompts: merely entering prompts into an AI system does not constitute human authorship, as the system retains ultimate control over the expressive output.
• No copyright for fully AI-generated works: the report firmly rejects the idea that AI-generated works, even if guided by a human operator, should qualify for copyright protection.
• Case-by-case approach: the determination of copyrightability will depend on the specific nature of human contributions in each case.

Comparison with the UK approach

The US Copyright Office’s findings contrast with the UK’s stance on AI-generated works. The UK’s Copyright, Designs and Patents Act 1988 (CDPA) includes a provision for computer-generated works. Under section 9(3) CDPA, where there is no human author, the author is deemed to be the person who made the necessary arrangements for the work’s creation. This provision allows AI-generated works to receive copyright protection in the UK, attributing authorship to the individual or entity overseeing the AI system’s use.

However, there is nuance in the UK approach. Section 1 of the CDPA still requires a work to be original to qualify for copyright protection. The test for originality in the UK has evolved over time, generally requiring the exercise of skill, judgment and effort. The extent to which AI-generated works meet this threshold remains uncertain due to a lack of direct case law. One of the few relevant examples, Nova Productions Ltd v Mazooma Games Ltd & Ors [2006] EWHC C24 (CH), suggested that human authorship remains a key criterion for copyright protection, but it did not conclusively resolve ownership issues concerning computer-generated material.

Thus, while section 9(3) provides a framework, there is still legal uncertainty about whether AI-generated works fully meet the originality requirement.

What’s next for the UK?

The US Copyright Office’s stance reinforces the principle that human creativity remains at the heart of copyright protection. However, as AI tools become more sophisticated and deeply integrated into creative industries, both US and UK lawmakers will face increasing pressure to clarify the boundaries of copyright protection..

In the UK, there is ongoing debate about whether section 9(3) CDPA should be retained or modified in light of rapid AI advancements. One potential outcome is that UK law could move closer to the US approach, requiring greater human involvement for copyright protection. Alternatively, the UK might develop a more tailored framework, balancing innovation incentives with clear rights for AI-generated content.

We will continue to monitor these developments closely. The US Copyright Office has announced that Part 3 of its AI and Copyright Report will focus on the training of AI models using copyrighted works, licensing considerations and potential liabilities. Once released, this report will provide further insights into how copyright law adapts to the challenges posed by AI technologies.

The first two reports from the US Copyright Office can be found here: https://www.copyright.gov/ai/.

If you require advice on the exploitation of copyright, AI or related matters, please contact James Hutchinson or Deen Taj.