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AI works shut out from copyright protection

August / September 2022 IP Newsletter

Artificial intelligence (AI) has made inroads in a wide array of areas, but it has yet to break down the barriers to copyright protection. The U.S. Copyright Office continues to refuse to register a copyright on works created by AI. The Review Board of the U.S. Copyright Office (board) explained its reasoning earlier this year.

Does not compute

In 2019, the Copyright Office refused to register Steven Thaler’s two-dimensional artwork. According to Thaler, the work was autonomously created by AI, without any creative contribution from a human. He sought to register the work as the owner of the “Creativity Machine” that made the work.

The Copyright Office denied registration because the work lacked human authorship. Thaler requested reconsideration, and the Copyright Office came to the same conclusion. He then submitted a second request for reconsideration. The result was the same.

Lacks the human touch

Copyright law protects only “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” Thus, Thaler had to provide evidence that the work was the product of human authorship.

But Thaler instead argued that the human authorship requirement is unconstitutional and unsupported by statute or court precedent. The board disagreed, finding that courts — including the U.S. Supreme Court — interpreting the Copyright Act have “uniformly” limited copyright protection to works created by humans.

Although it conceded that it knew of no U.S. court that has weighed whether AI can be the author for copyright purposes, the board determined that courts have been consistent in finding that non-human expression is ineligible for copyright protection. The board also found that federal agencies have followed the courts’ lead on this issue.

The board cited a recent report from the U.S. Patent and Trademark Office (USPTO) for further support. The USPTO sought public comment on whether a work produced by AI, without the involvement of a “natural person,” qualifies as a work of authorship under the Copyright Act. The vast majority of commenters acknowledged that existing law doesn’t allow non-humans to be authors and that this should remain the law.

Alternative reality fails, too

The board also rejected Thaler’s second argument — that the work-for-hire doctrine allows for non-human, artificial persons such as companies to be authors.

The board pointed out that a work-for-hire is created as the result of a binding legal contract, and the Creativity Machine can’t enter such contracts. Moreover, the doctrine addresses only the identity of a work’s owner, not whether it’s protected by copyright.

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