Last week, the US Copyright Office published the second report in its series on artificial intelligence and copyright. As James Grimmelmann told The Washington Post, “If you make art with the help of AI, it’s copyrightable. If you ask AI to make art for you, it’s not.” The Office also concluded that “the case has not been made” for a change in the copyright law, or a new sui generisform of protection, to cover works created by artificial intelligence tools.

The Office’s recommendation amounts to an endorsement of two important ideas:

1. Fundamental copyright principles are up to the challenge of regulating this new technology.
2. Policymakers can trust creators, courts, and agencies to apply existing copyright law on a flexible, case-by-case basis to adapt to technology as it evolves.

In this case, the fundamental constitutional principle is that copyright only applies to human expression, not (as previous cases have found) the works of animals, divine beings, or (now) machines. Applying that principle to particular controversies will take judgment and subtlety, but the principle is so important that short-circuiting that case-by-case application would do more harm than good, upsetting the balance of the copyright system. Some stakeholders fret about uncertainty regarding the scope of copyright in works where AI was used, but the Office rightly understands that this fear is either misplaced or else will lessen as caselaw and practice develop.

The Office should take this approach in its next report, which is addressed to copyright and AI training. Consistent with these principles, it should conclude that the fundamental right of fair use is up to the challenge of sorting out lawful and unlawful training uses. Some big media companies and copyright maximalist advocacy groups argue that AI is so disruptive that it requires trashing 200 years of fair use jurisprudence, and that courts can’t be trusted to do what they’ve done all that time: apply fair use equitably to new situations. If the Office is consistent, it will reject those arguments and stand by a copyright policy commitment that is even deeper than the requirement of human authorship: the right of fair use.