This week: Generative AI, Copyright, and Plagiarism Edited by: Max Griffin 🏳️🌈  
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This is my first newsletter back after taking a six month sabbatical. I needed some time to refresh and come up with new ideas for these monthly missives. I enjoyed my time away, but I also enjoyed preparing for this newsletter. I hope readers will find it useful, or at least informative.
This newsletter only covers what to tell potential readers and reviewers if you decide to use generative AI in your writing. It doesn't discuss the bigger questions of whether to use it all or, if you do use it, how optimize your use. I've certainly got opinions on these topics, but they are for another day, if at all. If you want more on this topic, please let me know. |
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Copyright, Plagiarism, Fan Fiction, and AI-Generated Content
If you gaze long enough into an abyss, the abyss will gaze back into you.
--Friedrich Nietzsche
While I was preparing this newsletter, Nietzsche's quote came to mind. Initially, the four topics of the title felt like staring into four separate and especially nasty black holes, each with a unique and dangerous event horizon.
Copyright deals with legal rights, while plagiarism is an ethical standard. As Shakespeare noted, the law is an idiot, so the connection between legality and ethics is sometimes tenuous. Both the ethical and legal standards have implications for authors of fan fiction. Fan fiction has been around for a while, and can provide a faimilar subtext for responding to new technology.
Generative AI, such as ChatGPT, injects new issues into the already complex interplay between law and ethics. New technology is never neutral, and generative AI promises to be disruptive in ways that are impossible to predict or even imagine. This newsletter proposes some minimal steps users of this technology might consider in light of the legal and especially ethical context of a writing site. Broader discussions of generative AI and how--or whether--to use it are for another day and another newsletter.
The discussion in a newsletter of this type can only cover the most basic topics. The Digital Millennium Copyright Act, for example, is over sixty pages long, and the US Copyright Office's guidance on Works Containing Material Generated by Artificial Intelligence (37 CFR Part 202) runs to over four pages of fine print in the Federal Register. See the end of this newsletter for links to these and other more in-depth discussions of the various topics mentioned below.
I am not a lawyer (IANAL), so don't use anything in this newsletter as legal advice.
What kinds of material are eligible for copyright?
There are two basic requirements for something you've created to be eligible for copyright: it must be fixed in some tangible form and it must be original.
Fixed means that there is a tangible expression of the copyrighted material. If you save your story to the hard drive of your computer, that means it's "fixed in some tangible form." You do not have to show it anyone else, nor do you have to attach the copyright notice.
If you tell your story to someone orally, that does not "fix it in tangible form" and it is not eligible for copyright. By tradition, Homer only told The Illiad and The Odyssey orally, so he'd be out of luck with respect to copyright. However, if a time traveler had recorded the telling, that would have "fixed it in tangible form" and made it eligible. Of course, the copyright would by now have expired.
The other requirement is that the tangible form of the material must be original, which primarily means it's not copied from another source.
Originality does not mean that material must be inventive, novel, unique, or otherwise imaginative. It just means that the tangible form can't be copied from another source. For example, you can't paste the opening paragraph of A Tale of Two Cities into a document, save it, and then assert copyright over the material. That's because it's not original and not because it violates someone else's copyright--any theoretical copyright on Dickens' works has long since expired.
Copyright law explicitly limits copyright protection to content created by humans. If your pet monkey Curious George takes a selfie, copyright can't protect the photo, even though it's original and in fixed form. This also means that generative AI is not, by itself, eligible for copyright protection. This is true even when the text is based on a prompt by a human. To quote the guidance of US Copyright Office, If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship... (see below for the citation). If the content is mixed between generative AI and human creativity, then the degree and character of human engagement determines eligibility, and the Office makes a finding on a case-by-case basis. The official Guidance from the Office provides ample case law as the basis for their guidance.
Copyright does not protect ideas. It only protects the tangible expression of those ideas. You can't copyright the idea of a school that teaches magic to young people, but Harry Potter's school--the tangible implementation of that idea--is subject to copyright.
In order to be eligible for copyright, the creative component--the original part--has to be separable from the tangible expression. Failing this test, known as conceptual separability, means that the material is not eligible for copyright. This concept arose in connection with "useful objects" like clothing or furniture, which have long been excluded from the protections granted by copyright law. This remains the case, even when even when these objects have signiciant design and artistic elements--think of Halston dresses or Eames chairs. However, suppose someone designs a table lamp that uses a statue to support the light fixture. The lamp itself can't be protected by copyright, but the statue is "separable" from the lamp, and so it can be protected. This is actual case law from 1954 (Mazer v. Stein, cited below). Remember this point for later when we discuss AI-generated text.
What is copyright anyway?
When you create material that meets the above two requirements--that it's fixed and original--you acquire certain legal rights to that material. Collectively, this bundle of rights is known as "the copyright."
These rights vary from country to country, but most nations are signatories to the 1886 Berne Convention for the Protection of Literary and Artistic Works, the US having adopted this convention in 1971. The most important rights relate to the publication and distribution, or redistribution, of the copyrighted material and of works derived from the copyrighted material. Remember the "derived from" phrase for later when we discuss fan fiction.
When you sell a novel or story to a publisher, you sign a contract granting a license to some or all of these rights. Some rights, like "first rights to online publication" or "First North American rights," are more important than others. Most publishers are primarily or only interested in "first rights."
It's for this reason that you should exercise care and forethought when posting your original works to websites like Writing.Com. If you protect your material with a passkey, then you haven't "published" it since, by definition, you have restricted access to the material to those with whom you have shared the passkey. However, if you have posted the item without a passkey, you've used up "first online rights" and can't then sell or license those to a publisher later. If you have no intention or interest in selling your rights, you don't need to bother with the passkey.
Novels are a little different. Most publishers don't care if you publish short excerpts--say the first two or three chapters--online without passkey protection. Indeed, this is a common marketing tool and often publishers encourage authors to do this. If you visit my portfolio on Writing.Com, you will see the opening three chapters for many novels, some in progress and some already published commercially.
What is plagiarism?
Plagiarism is a form of intellectual dishonesty in which you represent intellectual material as your own, original creation when instead it has been copied from another source. As in most places, in the US, plagiarism is not illegal. Instead, it is an ethical standard.
Every item in your Writing.Com portfolio automatically includes a copyright notice and thus affirmatively asserts that the document meets the two tests of "fixed form" and "originality." Indeed, saving your document on Writing.Com can establish the date of the "fixed form," which might be important in resolving disputes over copyright. The copyright notice also affirmatively declares and asserts that you own the rights associated with the copyright and that no one else may sell, license, or otherwise profit from the material without your consent. For these and other reasons, this posting of the copyright notice on Writing.Com items is both helpful and useful to members.
There is an obvious overlap between plagiarism and copyright. Absent any indication to the contrary, the implication is that your writing is your original creation. If this is not true, in whole or part, you have an ethical obligation to give due credit to the original sources. Failure to do so consitutes plagiarism. Moreover, posting here automatically includes the copyright sympbol and notice that the content belongs to you and is protected by copyright. That is an affirmative assertion that the material is original since "originality" is one of the two requirements for copyright. If this assertion is not true, then the claim to copyright will fail the legal test in addition to the ethical test. In either case, you will have committed plagiarism unless you specifically limt the claim of originality through citation or other means that clarify the elements that are original and thoise that are not.
Other ethical questions pertaining to plagiarism can arise in commonplace ways. For example, what about the quote at the start of this newsletter? That's certainly not original to me, the author. However, because of the way the material appears, citing the actual author and placing the quoted text in italics, it makes it clear that that portion of the newsletter is not original to me. It's a disclaimer that limits the claim of originality that's implicit in the posting. That disclaimer resolves the ethical issue of plagiarism. Any legal issue pertaining to copyright is moot since the material is old enough that any potential copyright has long since expired.
The above is an example of "fair use" of material. Such uses should contain a proper citation to the original source. Style guides like the Chicago Manual of Style give guidance on such citations, but for Writing.Com posts, simple disclaimers like the above example generally suffice. "Fair use" is another complex legal term that merits separate discussion--see the Short Course from the University of Texas below for a good summary.
What about Fan Fiction?
There are other instances where your material might not meet the "originality" test under copyright law. One obvious example is fan fiction. In this case, you set your story in a fictional universe created by someone else and, possibly, also use someone else's characters from that universe.
While holders of the copyright to Star Wars or the various Marvel universes are almost certain to respond to unlicenced commercial publication of fan fiction with lawsuits, they may be more forgiving of non-commercial fan fiction. However, their copyright gives them the legal authority to demand such fiction be taken down and to seek damages. Indeed, failure to protect their copyright might weaken their case against commercial infringements. Disney has been particularly aggressive in protecting its copyrights of a certain mouse, for example. Larry Niven has reported threatening non-commercial fan fiction with lawsuits for stories he found inappropriate for his Known Space universe. Fan fiction is almost certainly a violation of copyright unless the creator's copyright has expired or the creator has explicitly granted blanket permission for fan fiction.
In any case, fan fiction does not meet the "originality" test for copyright and is thus not eligible. Yet, if you post fan fiction on Writing.Com, your item automatically gets the copyright notice. Since the copyright notice is an affirmative statement that your material is eligible for copyright and hence is original, this poses an ethical dilemma for the author of fan fiction. That's where plagiarism comes in, along with strategies for mitigating the conflict between the unoriginal components of the material and the copyright notice.
The simple solution to the ethical dilemma is to post a notice that names and gives credit to the original material. An example might be "This story uses characters and features derived from the Star Wars Universe created by George Lucas." If you put such a notice at the start of your fan fiction, that should resolve questions of ethical dishonesty since it limits the claim of originality that's implicit in the copyright notice. The material would still violate Lucas's (now Disney's) copyright, so it only mitigates the ethical but not the legal questions.
What about AI-generated content?
At least in the US, the legal issues pertaining to copyright and AI-generated material haven't been fully resolved. The US Copyright Office has issued guidance that states that works containing AI-generated content are not copyrightable without evidence that a human author contributed creatively.
Suppose. for example, that somone input the characters and plot into an AI-generator and it spit out a story? Under the above guidance, would that be eligible for copyright? Remember, you can't copyright ideas, just the tangible expression of those ideas. In this case, you can't separate the ideas--the plot and characters--from the tangible expression of that idea, i.e., the words of the story. That means that it's likely such a story would fail the conceptual separability test and thus not be eligible for copyright. The official guidance from the Copyright Office quoted above makes it clear that his their finding as well. Case law and/or new legislation will eventually resolve this issue by providing specific tests for the degree and character of human engagement required for copyright protection of text with mixed human and machine content. .
AI-generated text also raises "fair use" questions. All AI systems use "training data" to inform their output. That means that the programmers have loaded gigabytes of examples, much of it copyrighted, into their training data. The AI systems then use this training data to produce their text. In a real sense, the systems are copying material and thus violating the rights of copyright holder. There is some limited precedent for use of copyrighted material in databases--sites that test for plagiarism, for example, use similar training data. However, it's an unresolved legal issue whether or not such use of copyrighted material constitutes "fair use" even for the anti-plagiarism sites. If the courts or Congress find that this violates fair use, the much of generative AI disappears, at least without paying license fees to the copyright holders..
There's little doubt that AI-generated material will result in clarifications and probably revisions to copyright law. As with the advent of digital music, this is likely to take years to stabilize.
While the legal issues are, at least for the present time, still somewhat open, the ethical issues are much clearer.
Consider the example of an AI-generated story that is posted on Writing.Com. This story, like all items on Writing.Com, has a copyright notice attached to it. That notice is an affirmative declaration of originality. Yet the tangible expression of that creation, the words of the story, are not original to the poster. They are, instead, copied from the output of the AI generator. That makes the posting inherently dishonest, which is the definition of plagiarism.
As with fan fiction, the solution is simple. If story includes AI-generated text in whole or part and includes a notice at the top of the file such as, "This story uses AI-generated text based on characters and situations created by the poster," then the poster has, at least ethically, identified that some--or possibly all--parts of the story are not original. Reviewers and readers will understand the context of the story and will not mistake the text as having been created by the poster.
Conclusion
The issues raised by AI-generated text are both new and old. Like most new technology, AI is almost certain to be disruptive, and probably in ways no one can anticipate. It's potentially a powerful tool that will revolutionize fiction as we know it. The advent of photography did something similar to the visual arts, especially to portraiture. But that revolution gave us Matisse, Picasso, Salvador Dali and many others. It also brought us artists like Ansel Adams, Richard Avedon, and Annie Leibovitz. Our world is richer as a consequence. The post-AI world has the potential to be richer as well, perhaps richer than we can imagine.
It's an exciting time to be writer. I hope I live to see how the story ends.
For further Reading
Citation and Documentation of sources for generative AI from the Chicago Manual of Style
Copyright Crash Course for insturctors, students, and authors, from the University of Texas
Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence from the US Copyright OIffice. .
DIgital Millenium Copyright Act , text of the law
DIgital Millenium Copyright Act , US Copyright Office Summary
Guidance on how to cite generative AI from the Modern Language Association of America
Plagiarism Overview from Purdue University's writing center, the OWL
Mazer v. Stein
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