Written by: Payton Wilson
The introduction of the internet in 1983 sparked advances in the legal field at a supersonic rate. Intellectual property and privacy law were faced with new issues that, through the judiciary and legislative branches, found some reprieve. Attitudes surrounding the internet and IP law changed to accept the prevalence of the internet, however, copyright law has been more reluctant to accept the emergence of new technologies.
Artificial Intelligence (AI), in particular, has garnered increased support and importance in the last decade.[1]Originally requiring a heavy hand from programmers to produce viable work, AI is now more autonomous than ever. AI can create entirely new and original works including short stories, scripts, memes, images, and other mediums of art and speech faster than the human mind.
Should this work then be protected by copyright law? The U.S. Copyright Office has reacted with hesitancy. In early 2022, the U.S. Copyright Office denied a request by Steven Thaler to copyright artwork created by AI.[2] The application described the artwork as being created “autonomously” by “a computer algorithm running on a machine.” [3]However, the application made no mention of a human programmer or human influence.[4] The complete lack of human involvement in Thaler’s application aligns with strong jurisprudence finding that “non-human expression is ineligible for copyright protection.”[5] AI is developed by human programmers, but at what point does AI created work become too attenuated from the programmer? AI learns at accelerated rates meaning that some works may not be the end product intended by the human programmer. In that situation, it would seem the AI produced something that is truly unique and outside the bounds of the creativity of the human creator.
There are arguments to be had on both sides. Thaler argues that allowing AI generated works to be protected by copyright promotes the goal of fostering science and innovation.[6] AI is a scientific focal point that will become stronger in the near future. Countless pieces of work are likely to be produced and, as of the date of this publication, will have no protection. Conversely, the U.S. Copyright Office argues that the lack of human capital is dispositive.[7] Just like natural phenomena and events are denied copyright protection, so are computer generated ideas or works. The copyright office points to several examples of applications being denied due to lack of human creativity, including one instance where a monkey was listed as the creator of a photograph it took.[8]
The acceptance to AI in copyright will likely come as more businesses and large corporations turn to AI to produce works. As AI produces higher quality work faster, the more corporate entities will turn to AI instead of humans. Now, AI works may be few and far between at the U.S. Copyright Office. As more applications flow in and the demand for AI works increases, however, the Office will be forced to respond.
[1] Jane Recker, U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted, Smithsonian Mag. (Mar. 24, 2022), https://www.smithsonianmag.com/smart-news/us-copyright-office-rules-ai-art-cant-be-copyrighted-180979808/.
[3] Brooke Gary, The Need for Human Creativity: The U.S. Copyright Office Says Artificial Intelligence Can’t Copyright its Art, Suffolk U. L. Sch. J. High Tech. L. (Apr. 8, 2022), https://sites.suffolk.edu/jhtl/2022/04/08/the-need-for-human-creativity-the-u-s-copyright-office-says-artificial-intelligence-cant-copyright-its-art/.
[7] Edouard Fourtenet et al., Which AI Components Are Copyright Protectable and Which Are Not? Jones Day (Mar. 2022), https://www.jonesday.com/en/insights/2022/03/which-ai-components-are-copyright-protectable.
