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AI generated works - without actual human input are not protected by copyright

Rachel Pasher Eijkenaar, Adv.

AI - as other non human entities- cannot be the owner of a Work protected by copyrights: This was decided on18.8.2023 by the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, Civil Action No. 22-1564 (BAH) Judge Beryl A. Howell

STEPHEN THALER, Plaintiff v. SHIRA PERLMUTTER, Register of Copyrights and Director of the United States Copyright Office, et al. Defendants .

The story:

The plaintiff Thaler, owner of AI platform, attempted to register a work that his platform generated, with the Register of Copyright, and was denied based on the fact that AI cannot be the author of a protected Work. The case reached the USA District court of Columbia.[p.1]

A work created with aid of machine – controlled by a human- can be protected by copyrights:

The court cited the USA Copyright Act of 1976, that includes copyright protection for works created with the aid of machine or device. [p.9]

“The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.”[p.9]

Although not defined in the Copyright Act, the courts - within in this decision as well- define "author" as a human. [p.9]

Copyright was created mainly to provide human creators incentive to keep on creating and so - copyrights are not relevant to non human entities such as AI and animals :

Incentivization for creators was from its inception, central to the American Copyright Act- and as non-human creators are in no need of that, copyrights were not designed for them (“copyright was therefore not designed to reach them”)[p.9]

“The human authorship requirement has also been consistently recognized by the Supreme Court when called upon to interpret the copyright law.”[p.10], this includes rejection of a copyrights in a photo taken by a monkey- thus excluding animals as authors or creators.[p.12]

Times are changing- AI should be addressed with regards to copyrights:

“Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works.[p.13]

A group of USA Senators have already announced (via joint letter), that “the United States Patent and Trademark Office and the United States Copyright Office “jointly establish a national commission on AI” to assess, among other topics, how intellectual property law may best “incentivize future AI related innovations and creations”[p.13]

The end of the story:

In this case, plaintiff made clear in his attempt to register copyright on the AI generated image, that it was generated autonomously by the AI - and by that “the question of whether a work generated autonomously by a computer system is eligible for copyright”, and no discussion regarding works created by artists using AI was needed. [p.14]

The results of this case were : ” “On the record designed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register…”[p.14]

What next:

How will the Copyright Registrar and courts react to a work created by a human using AI as a “team” is yet to be seen- but it is clear that in each case the teamwork will need to be examined- to conclude if the work is a mostly a product of a human, of AI or an actual combination. As more humans will use AI tools – and as AI becomes our “pen and pencil”- the laws in the USA and around the world will probably be updated accordingly.

A positive note:

If the legal approach, according to which, products of human and AI collaboration will allow their authors or creators for more Intellectual Property rights, will be adopted around the world's legal systems - there is a fair chance that it will help dictate the AI industry's approach - to create platforms for such collaboration. It will help humans to stay more relevant and less redundant in the new evolving economy and world.

The author of this post is an IP lawyer. This post is in no way to be considered as legal advise. For such- please contact a lawyer.

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