Copyright in the Age of Artificial Intelligence

On January 16, 2024, the Ministry of Culture, Sports and Tourism ("MCST") and the Korea Copyright Commission ("KCC") released Guidelines on Generative AI and Copyright (the "Guidelines").

While not legally binding, the Guidelines provide helpful policy directions for various stakeholders including AI service providers, copyright holders, and AI service users. The Guidelines address potential copyright issues in training AI models and generating outputs from the models, considerations for copyright holders and AI service users, and whether AI-created content can be registered for copyright.

Key Highlights of the Guidelines

Topics	Details
Guidelines for AI service providers	AI service providers are encouraged to do the following: Secure legal basis for using any copyrighted works prior to using them given the current lack of clear legal standards on whether using copyrighted works for training AI models constitutes "fair use" under copyright law. Prevent copyright infringement by filtering out any expression that is identical or similar to copyrighted works from AI-generated outputs. Allocate liabilities among foundation model developers and downstream AI service providers who deploy such models in relevant contracts to help resolve future disputes that may arise from copyright infringement by AI-generated content. Invest in technologies and research to label AI-generated content with an ultimate goal to protect copyright holders' rights while also facilitating seamless use of copyrighted work.
Guidelines for copyright holders	Any copyright holders that do not want their copyrighted works to be used to train AI models are advised to clearly indicate such intent in relevant contracts or adopt technical measures to preclude such use by adding robot exclusion standards.
Guidelines for AI service users	AI service users are advised to take caution when entering prompts into AI services, to avoid infringing a copyright by entering such prompts or inducing the AI service to generate any infringing content.
Whether AI-generated content can be registered for copyright	Content that was created using AI and without human intervention cannot be registered for copyright. To the extent that the AI-created content was modified or augmented by human beings in a creative way such that the human-modified portion is a protected expression under copyright law, such human-modified portion of the content can be registered for copyright.

On February 19, 2024, the MCST kicked off the "2024 AI-Copyright Task Force" to develop policy plans to address issues that industry stakeholders are facing in practice, such as: (i) how to secure legal basis to use copyrighted works in training AI models; (ii) whether to disclose training datasets; (iii) whether and to what extent AI-generated outputs can be protected; (iv) how to label AI-generated content; (v) conditions for registering AI-generated content for copyright and copyrightable scope; and (vi) standards for reviewing potential copyright infringement by AI-generated content. Companies are advised to closely monitor the Task Force as it is expected to announce more specific policy directions later this year.

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