Can (and should) AI-generated works be protected by copyright?

Should Artificial Intelligence (AI) music and other creations recieve the same copyright protections that human generated works do? Learn current interpretations of the law and join the debate.

A guest post by Mike Masnick of TechDirt.

For years, throughout the entire monkey selfie lawsuit saga, we kept noting that the real reason a prestigious law firm like Irell & Manella filed such a patently bogus lawsuit was to position itself to be the go-to law firm to argue for AI-generated works deserving copyright. However, we’ve always argued that AI-generated works are (somewhat obviously) in the public domain, and get no copyright. Again, this goes back to the entire nature of copyright law — which is to create a (limited time) incentive for creators, in order to get them to create a work that they might not have otherwise created. When you’re talking about an AI, it doesn’t need a monetary incentive (or a restrictive one). The AI just generates when it’s told to generate.

This idea shouldn’t even be controversial. It goes way, way back. In 1966 the Copyright Office’s annual report noted that it needed to determine if a computer-created work was authored by the computer and how copyright should work around such works:

In 1985, prescient copyright law expert, Pam Samuelson, wrote a whole paper exploring the role of copyright in works created by artificial intelligence. In that paper, she noted that, while declaring such works to be in the public domain, it seemed like an unlikely result as “the legislature, the executive branch, and the courts seem to strongly favor maximalizing intellectual property rewards” and:

“For some, the very notion of output being in the public domain may seem to be an anathema, a temporary inefficient situation that will be much improved when individual property rights are recognized. Rights must be given to someone, argue those who hold this view; the question is to whom to give rights, not whether to give them at all.“

Indeed, we’ve seen exactly that. Back in 2018, we wrote about examples of lawyers having trouble even conceptualizing a public domain for such works, as they argued that someone must hold the copyright. But that’s not the way it needs to be. The public domain is a thing, and it shouldn’t just be for century-old works.

“works that lack human authorship”

Thankfully (and perhaps not surprisingly, since they started thinking about it all the way back in the 1960s), when the Copyright Office released its third edition of the giant Compendium of U.S. Copyright Office Practices, it noted that it would not grant a copyright on “works that lack human authorship” using “a photograph taken by a monkey” as one example, but also noting “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

Of course, that leaves open some kinds of mischief, and the Office even admits that whether the creative work is done by a human or a computer is “the crucial question.” And, that’s left open attempts to copyright AI-generated works. Jumping in to push for copyrights for the machines was… Stephen Thaler. We’ve written about Thaler going all the way back to 2004 when he was creating a computer program to generate music and inventions. But, he’s become a copyright and patent pest around the globe. We’ve had multiple stories about attempts to patent AI-generated inventions in different countries — including the US, Australia, the EU and even China. The case in China didn’t involve Thaler (as far as we know), but the US, EU, and Australia cases all did (so far, only Australia has been open to allowing a patent for AI).

But Thaler is not content to just mess up patent law, he’s pushing for AI copyrights as well. And for years, he’s been trying to get the Copyright Office go give his AI the right to claim copyright. As laid out in a comprehensive post over at IPKat, the Copyright Office has refused him many times over, with yet another rejection coming on Valentine’s Day.

The Review Board was, once again, unimpressed. It held that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

The phrase ‘original works of authorship’ under §102(a) of the Act sets limits to what can be protected by copyright. As early as in Sarony (a seminal case concerning copyright protection of photographs), the US Supreme Court referred to authors as human.

This approach was reiterated in other Supreme Court’s precedents like Mazer and Goldstein, and has been also consistently adopted by lower courts.

While no case has been yet decided on the specific issue of AI-creativity, guidance from the line of cases above indicates that works entirely created by machines do not access copyright protection. Such a conclusion is also consistent with the majority of responses that the USPTO received in its consultation on Artificial Intelligence and Intellectual Property Policy.

The Review also rejected Thaler’s argument that AI can be an author under copyright law because the work made for hire doctrine allows for “non-human, artificial persons such as companies” to be authors. First, held the Board, a machine cannot enter into any binding legal contract. Secondly, the doctrine is about ownership, not existence of a valid copyright.

Somehow, I doubt that Thaler is going to stop trying, but one hopes that he gets the message. Also, it would be nice for everyone to recognize that having more public domain is a good thing and not a problem…