Ranking Member Johnson's Opening Statement For AI Hearing Part III

Hearing on “Artificial Intelligence and Intellectual Property: Part III – IP  Protections for AI-Assisted Inventions and Creative Works”

Congressman Hank Johnson (GA-04), ranking member of the Judiciary Subcommittee on Courts, Intellectual Property & the Internet,  released the following statement during today's hearing -- “Artificial Intelligence and Intellectual Property: Part III – IP  Protections for AI-Assisted Inventions and Creative Works.”

Thank you to our witnesses for being here today and to Chairman Issa for holding this hearing. As most of the people in this room already know, this is part three in a series of hearings on the impact of artificial intelligence on intellectual property and innovation, and I am proud to join Mr. Issa in this ongoing examination of the state of innovation in America. 

Artificial intelligence is changing how the world works before our very eyes. And this subcommittee has considerations not just over the IP implications of the final outputs of AI models, but also how these models are trained. While some of the issues we discuss today exist only as hypotheticals for future iterations of generative AI technologies, other issues are already real and before us, impacting the way we do business and live our lives today, and I am looking forward to continuing our conversation in part four, whatever the topic might be. 

When we sit down behind the wheel of our car, lean over, and turn on the radio, we expect the song we hear to be a work created by a human artist. The beat, the melody, the words, the riffs, we take for granted as having sprung from the mind of a flesh and blood creator. But what happens when that is no longer the case? 

The question we will examine today is when a work of art or original invention should no longer be worthy of intellectual property protection. Generative AI can both produce original content and assist the production of original content that would clearly be eligible for IP protections if created entirely by a human. An algorithm can spit out original lyrics for a songwriter to put to music, and it can analyze large sets of data for a scientist developing a new chemical compound. It is not debatable that these basic operations are already reality. And already, we are beginning to see artists and scientists seeking protection of such creations through copyright and patent.

AI cannot be listed as an inventor on a patent. It cannot own a copyright. The courts and the Copyright Office have, respectively, already addressed those basic questions. But the question of how much AI involvement renders a product as no longer having been created by a human being remains open. Both the Copyright Office and the Patent and Trademark Office have released guidance and are continuing to address the issue of how we should as a society treat AI-created or AI-assisted works of innovation. I applaud President Biden, Director Vidal, and Director Perlmutter for addressing these questions head-on. 

From the initial guidance, it is clear that the question of “how much AI is too much” for IP protection is far from a straightforward question. Yes, generative AI can write an essay, but the nuances between AI assistance and 100-percent AI creation are substantial. Moreover, innovations made with the assistance of AI are the final product in a long chain of creators. AI is typically developed by one set of people, trained on the data of many others’, which often includes others’ copyrighted property, and then deployed by a third set who become the model’s users. That model then turns around and to be used in lucrative ways, like finding aberrations in datasets or making a better autotune for a song. I am looking forward to hearing from our witnesses how they believe we should address these nebulous questions about the inseparable nature of human and machine creativity, and whether existing copyright and patent laws provide any guidance.  

While those conversations are ongoing, it is also time for Congress to examine what our involvement should be, and I’m looking forward to hearing from our witnesses what legislative tools they believe agencies, inventors, and creators need to keep our intellectual property systems strong. 

We must remember that at its heart, intellectual property protections exist to keep our communities strong. Looking at my home district near Atlanta, Georgia, patents drive the creation of new businesses and emerging community leaders. Copyright protections protect up-and-coming new artists and allow creators to make a living off of their talents, contributing to the fabric, depth, and color of the towns we call home. And both drive the growth of vibrant cities. In fact, the U.S. Census Bureau last month named the metropolitan Atlanta area the sixth largest, and third fastest growing, region in the country. 

Because of this, we should approach the question of IP protection for AI-driven works both from a legal jurisprudence perspective but also from a human one. By asking at every step, “what helps our creators,” we are more likely to end up with a system that keeps working the way it should, no matter what revolutionary new technologies come our way.

I look forward to hearing from our witnesses and I yield back the balance of my time. 

To watch the hearing, click HERE. 

The witness panel will consisted of:

• Sandra Aistairs – Professor of Intellectual Property Law at George Mason University Antonin Scalia Law School;

• Kristelia García – Professor of Intellectual Property Law and Technology at Georgetown University Law Center;

• Joshua Landau – Senior Fellow for Innovation Policy at the Computer and Communications Industry Association; and

• Claire Laporte – Fellow and Former Head of Intellectual Property at Gingko Bioworks.

Purpose of Hearing

This hearing marks the third installment of the Subcommittee’s series on artificial intelligence, or AI. While the first two hearings of this series facilitated wide-ranging discussions about the use of copyrighted materials to train AI models, the impact of generative AI on creative  industries, and the challenge of curbing misuse of people’s name, image, voice, and likeness  using AI, this hearing will more narrowly focus on how intellectual property rights should apply to AI-assisted or -generated outputs. AI-assisted or -generated creative works will largely be discussed within the frameworks of copyright, while AI-assisted or -generated inventions will 
fall within the purview of patent law. 

Within the last 13 months, both the US Copyright Office and the US Patent and Trademark Office have released guidance related to use of AI. In brief, both sets of guidance emphasize that IP protections only cover works of human authorship and inventorship, and that wholly AI generated materials are ineligible. However, many critical details about these rules remain  uncertain, making enforcement and compliance unclear. In the meantime, a few cases are testing  questions of AI authorship and inventorship in the courts. This hearing is an opportunity to  consider these issues and whether Congressional action is warranted at this time.