April 22, 2022 – Over the past few years, comedy writer Keaton Patti has popularized “bot scripts”, in which he parody imagines how a computer could synthesize 1,000 hours or more of information and then create its own imitation work. My favorite was a holiday-themed rom-com script, in which a “businessman” whose “hands are like briefcases” woos a “single mother” who “can’t go out because of the curse of the snow”.
This man-made work mimicking artificial intelligence is almost certainly entitled to copyright registration. But what if someone actually created a bot to sift through 1,000 hours of rom-coms and create a storyline that merged their learnings? Would this script qualify for copyright registration? According to the US Copyright Office’s Copyright Compendium, “the Office will decline to register a claim if it determines that a human did not create the work”, so the answer is currently no.
Stephen Thaler, Ph.D. in physics and founder, chairman and CEO of Missouri-based technology company Imagination Engines Incorporated, is trying to change US Copyright Office policy against copyright registration of AI-created works.
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Thaler is a pioneer in the creation of artificial intelligence machines, including three versions of the “Creativity Machine” and the Device for the Autonomous Bootstrapping of Unified Sentience, nicknamed DABUS. DABUS is one of the most advanced AI systems in the world, as it not only compiles and analyzes existing information to produce optimal combinations, but also trains and tests the consequence chains of each of the potential outcomes. Simply put, DABUS is to traditional AI what 3D is to 2D.
Thaler has attracted particular interest from intellectual property lawyers because of its far-reaching efforts to protect the fruits of Creativity Machines’ and DABUS’s work, both in patent offices around the world and in the US Copyright Office.
Around 2014, DABUS had seen thousands of photographs and was able to generate original illustrations based on his machine learning. On one particular project, Thaler used the “random termination of connections within DABUS to simulate a dying brain”. DABUS generated a two-dimensional work of art which he named “A Recent Entry into Paradise”. Although it looks like a train tunnel covered in flowers to the human eye, DABUS captioned (and apparently envisioned) the artwork as follows: “This installation was decommissioned in 1975. The offices admins on the right were then dropped. Note the cross-dimensional ripple effect.”
In November 2018, Thaler filed a copyright application in the United States to register the two-dimensional artwork, citing “Creativity Machine” as author and himself as plaintiff, based on his ownership by Creativity Machine.
In August 2019 and March 2020, the U.S. Copyright Office refused to register “A Recent Entry into Paradise” because the work “lacks the necessary human authorship to support a copyright claim”. In May 2020, Thaler’s attorney submitted a second request for reconsideration, which was assessed by the Copyright Review Board, the tribunal responsible for hearing appeals from decisions denying copyright registration. copyright and the final level of appellate review within the United States Copyright Office.
On February 14, 2022, the Copyright Review Board (CRB) rejected Thaler’s argument that the human authorship requirement was unconstitutional and unsupported by case law and issued a decision upholding the Bureau’s denial. copyright to record “A Recent Entry into Paradise”.
Although the precise question of whether AI-generated artworks could be registered with the US Copyright Office seemed like a matter of first impression, the CRB relied heavily on supposedly analogous decisions of the CRB and the federal courts involving works produced by nature and natural processes, such as a living garden, depictions of a jellyfish, and photograph of an ape.
The CRB also relied on U.S. Supreme Court decisions from 1884, 1954, and 1973 (long before AI existed) defining an “author” as “one to whom something owes its origins and the language of the 1976 Copyright Act referring to children, widow, grandchildren and widower — “terms that ‘all involve humanity'” — as judicial and legislative precedent.
And so, even in the absence of an express human authorship requirement in the Copyright Act, the CRB held that “[b]Because copyright law as codified in the 1976 Act requires human authorship, the [w]ork cannot be registered.” The CRB also rejected the pay-for-work arguments.
Considering that Thaler’s main challenge to the Copyright Office’s human authorship requirement was constitutionality, it was highly unlikely that the Copyright Office had simply reversed its longstanding construction of the Human Authorship Act. copyright. Such a drastic pivot in copyright policy will likely require the intervention of multiple federal courts or Congress.
When Thaler’s patent applications for AI-generated inventions were denied registration by the U.S. Patent Office, Thaler filed a lawsuit against the USPTO and its acting director under the Administrative Procedure Act, arguing that “the USPTO is a late adopter of Luddism”. Reading the tea leaves, it seems likely that Thaler will soon file a lawsuit against the United States Copyright Office and the Copyright Registry under the Administrative Procedure Act in the Eastern District of Virginia challenging the decision of the CRB or will appeal the decision of the CRB to the United States Court of Justice. Calls for the federal circuit.
And while the Copyright Office has occasionally reversed course in settling federal lawsuits against it under the Administrative Procedure Act, such a reversal seems unlikely here due to the historic nature of such a potential decision.
Notably, Thaler might have touted his human contribution to the overall creation of the machine-generated artwork (e.g., classifying the Creativity Machine as “merely an assistive instrument”), but instead represented that “A recent entry to paradise” was “autonomously created by artificial intelligence without any creative input from a human actor.”
This unequivocal statement appears to have been intentionally made to directly test the US Copyright Office’s human authorship requirement, rather than creating potential common ground for joint authorship between AI and humans and leaving the question of 100% authorship of unresolved AI.
In a footnote, the Copyright Review Board noted that “the Board need not determine under what circumstances human involvement in the creation of machine-generated works would meet the statutory criteria protection of copyright”. But it is reasonable to expect that this matter will be before the Copyright Review Board sooner rather than later.
Unless and until federal courts or Congress change the law relating to copyright registrability of AI-generated works, the Copyright Review Board’s decision raises more questions than it provides answers. For example, what can third parties do with AI-generated works such as “A Recent Entry into Paradise”? Should these works be treated as works in the public domain, free for commercialization by anyone?
Similarly, although federal courts require copyright registration as a prerequisite to filing a copyright infringement claim, the Digital Millennium Copyright Act (DMCA), which allows reporting of content generated by user infringing at a social media website (or other website with third-party content) does not. As a result, it is unclear whether sending a DMCA infringement notice to a website alleging infringement of an AI-generated work violates the DMCA’s prohibition against opinion in bad faith, following the decision of the CRB.
Finally, if AI-created works are not registrable as copyrights because they lack human authorship, are they also free from copyright infringement, at least until to be exploited?
The law generally lags behind technological advancements, and artificial intelligence technology is no exception. As humans create artificial intelligence and their artificial intelligence creates valuable inventions and works, we can expect abundant legal activity around the world seeking to protect the fruits of the lucrative labor of artificial intelligence. Thaler’s “A Recent Entry into Paradise” fight is probably just an entry into the contrived jurisprudence of intellectual property.
Disclaimer: This article is for informational purposes only and is not intended to be construed or used as general legal advice or solicitation of any kind.
Joel Feldman is a regular columnist on trademark and copyright law for Reuters Legal News and Westlaw Today.
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The opinions expressed are those of the author. They do not reflect the views of Reuters News, which is committed to integrity, independence and freedom from bias by principles of trust. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.