What happens to intellectual property law when intellect is artificial? Currently, US Copyright law is explicit about the need for human input, “…the Office will refuse to register a claim if it determines that a human being did not create the work.” This standing held as recently as 2018 in the monkey selfie case (above). Naruto, the Crested Macaque, was refused copyright for the selfie because the court concluded that, “…this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act.” A number of articles have cited this decision as directional for AI copyright cases. This sentiment is supported by additional language in the US Copyright Act outlining that, “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.”
Some argue that this stance may stifle AI development and call for changes to US copyright law. In the UK, there are authorship amendments for computer-generated literary, dramatic, musical or artistic works. In those cases, attribution goes to “the person by whom the arrangements necessary for the creation of the work are undertaken.” That said, this publication remarks that this 30-year-old rule has had only one reference in English courts.
…a category of ‘computer-generated works’, being those generated by a computer “in circumstances such that there is no human author of the work”. Section 9(3) CDPA provides that the author of a computer-generated LDMA (literary, dramatic, musical or artistic) work, “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken”. This approach of attributing authorship to LDMA works when there is no human author has been followed in a small number of other jurisdictions, but has otherwise remained something of a legislative backwater, receiving only a single judicial mention from the English courts in its 30-year history.
Kalin Hristov’s, “Artificial Intelligence and the Copyright Dilemma” suggests skipping the redefinition of “author” in US copyright law and, instead, reinterpreting “employee” and “employer”. In this solution, AI would be the “employee” and the author would be the employer where “employer” means a “firm, an organization, or an individual.”
If you’d like to read more about copyrights for AI take a look at this article. If you would like to learn more about international copyright law check out this book. If you would like to dig into “robot rights” check out this fun video.