Art in the Age of Mechanical Creation: US Copyright Office Denies Registration of Work Created by Artificial Intelligence


Stephen Thaler’s latest attempt to obtain legal rights for artificial intelligence has been overturned by the United States Copyright Office’s Review Board (“Board”). On February 14, 2022, the Board again denied registration of an AI-generated image, finding that human authorship is required under US copyright law.

Thaler’s Quest to Obtain Intellectual Property Rights for AI Creations

For the past few years, Thaler has been trying to get legal protections for creations made by the AI ​​machine he calls DABUS, short for Device for the Autonomous Bootstrapping of Unified Sentience. DABUS is a type of creativity machine that generates art and inventions through a system of neural networks. Neural networks are intended to mimic the human thought process, allowing DABUS to connect various concepts and ideas and create results (such as inventions or works of art) similar to how a human would come up with new ideas.

Thaler’s attempts met with varying success outside the United States. In July 2021, for example, an Australian federal court ruled that AI-generated inventions are patentable, granting a patent naming DABUS as its inventor. In the words of the Australian judge, “We are both created and create. Why can’t our own creations also create?” The following month, the South African patent office came to the same conclusion. These rulings run counter to rulings by the UK Court of Appeal, the European Patent Office and the United States Patent and Trademark Office (“USPTO”) requiring an inventor to be a Physical person. Thaler currently has DABUS patents pending in Brazil, Canada, China, India, Israel, Japan, New Zealand, Korea, Saudi Arabia, Switzerland and Taiwan.

Copyright and AI in the United States

A “Recent Entry into Paradise” (“Work”) marks Thaler’s first foray into copyright.

Thaler submitted the work to the United States Copyright Office (“Office”) in November 2018. He included a note stating that the work “was created autonomously by a computer algorithm running on a machine” and that he “sought to register this computer-generated work as hire labor for the owner of the Creativity Machine.” The Copyright Office refused to register the application, saying it “lacks[ed] the human authorship necessary to support a copyright claim.”

In September 2019, Thaler filed for reconsideration, arguing that “the human paternity requirement is unconstitutional and unsupported by statute or case law.” The Bureau reassessed the work in light of Thaler’s new claims. Again, he concluded that the work “lacks the human authorship required to support a copyright claim”, as Thaler “provided no evidence of creative contribution or sufficient intervention by ‘a human author in the work’. The Office also said it “would not abandon its long-standing understanding of Copyright Act, Supreme Court, and lower court precedent that a work fails to meet legal and formal requirements. of copyright protection only if created by a human author”.

In May 2020, Thaler submitted a second application. Thaler claimed that copyright law already permits “non-human entities to be authors under the doctrine of creating works for remuneration” and that the Office’s rejection was based on ” non-binding court opinions from the golden age[.]According to the Commission, the second request repeated “the same arguments as the first request, broadly advancing public policy arguments that the Office ‘should’ register copyrights in machine-generated works, as this would ‘favor the underlying purposes of copyright law, including the constitutional rationale for copyright protection.’” February 14, 2022, Board Decision, Correspondence ID 1-3ZPC6C3; SR # 1-7100387071 (“February 14, 2022 decision”).

The Board again rejected Thaler’s claim and concluded that “human authorship is a prerequisite for copyright protection”.

Refusal of registration by the Commission

The Copyright Act protects “original works of the mind” that are fixed in tangible expression. 17 USC § 102(a). The Commission acknowledged that the scope of this protection is “very wide”, but noted that it is not unlimited. Although no court has yet considered whether artificial intelligence can be an author for copyright purposes, the Commission saw no reason to depart from nearly 150 years of case law. Over time, the Supreme Court has interpreted the Copyright Act as applying only to “creations of human authors”. Various lower courts have followed the Supreme Court’s lead in rejecting attempts to copyright works “written” by “non-human spirit beings”, monkeys, “natural forces” or representing “ideas, first expressed by nature” without additional artistic input.

The Council also considered advice provided by federal agencies. The National Commission for New Technological Uses of Protected Works (“CONTU”) was created in the 1970s to study “the creation of new works through the application or intervention of [] automatic machine reproduction systems. CONTU’s conclusion echoes court decisions determining that human authorship is required for copyright protection.

Similarly, Copyright Office publications from 1966 reflect CONTU, which states that “for a work to be copyrightable, it must originate in a human being”. For this reason, the Copyright Office identifies many “non-human” inventions such as automated computer translations, derivative sound recordings made by purely mechanical processes, performances of animals, machines or objects , machine-generated expression in works of visual art, x-ray medicine or imagery, and hypertext markup language generated by a web site design program.

Finally, the Copyright Office considered advice provided in a 2020 USTO report seeking public comment on intellectual property issues raised by AI. The report notes that “the vast majority of commentators have acknowledged that existing law does not permit a non-human to be an author. [and] that should remain the law.”

Considering these factors, the Board concluded that a non-human cannot be an author under current copyright law.

The Commission also rejected Thaler’s argument that because the cash-for-work doctrine allows corporate entities such as corporations to be authors, AI can also be an author. For-hire work is the result of a contract between parties who agree that the work is for-hire. Thus, to be considered a work for hire, Thaler’s Creativity Machine would need the ability to enter into a legally binding contract. It can’t. Additionally, the cash-for-work doctrine only concerns who owns the work, not whether it is copyrighted. Therefore, the Board refused to register the Work.

The Future of Copyright Protection for AI-Generated Works in the United States

The Council’s decision is not surprising. Current copyright law does not allow an entirely machine-generated creation to benefit from copyright protection. Even still, the Council’s decision left open several potential areas for further development. For example, since Thaler argued that there were no contributions from a human author, the Board did not address the circumstances in which there is “human involvement in the creation of generated works by a machine”. Yet this description applies to a significant number of works, as artists increasingly use Generative Adversarial Networks (or “GANs”) which can create entirely original outputs based on artist-selected inputs.

In addition, the Council suggested that Congress could act to expand the scope of copyright law. The Board noted that Congress’s use of “original works of authorship” demonstrates an intent to encompass a narrower set of creative works than those that might be protected under the Constitution.” It is therefore possible that Congress will change this language if it wishes to encompass AI-generated work in the future.

To that end, there is also room for extended protections if certain types of AI are legally recognized. It is possible, for example, that the law will begin to recognize certain types of AI, such as Thaler’s Creativity Machine, as legal persons in the same way as corporations. Recognizing AI as a corporation has a host of repercussions, but at least for copyright purposes, it could afford protection in certain circumstances.

For now, work generated without human intervention remains outside the scope of copyright protections. That could change as artificial intelligence continues to move closer to personality, at least in the eyes of the law.

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