If a computer automates a creative work, who owns the copyright? The machine? Computers own? Nobody? Let’s find out.
A guest post by Stephen Carlisle of Nova Southeastern University.
Many headlines were created last week when the US Copyright Office refused registration, for the third time, of a work of art in which the author of the work was identified as “Creativity Machine”. 1 Interestingly, had the proposed author not admitted this fact, the registration would likely have issued. Here is the art in question:
The artwork, titled “A Recent Entry into Paradise,” certainly looks like it was created by a human. But since the proposed author chose to admit that he was created by a machine, not a human, this doomed the claim to be rejected by the Copyright Office.
This decision really should not have come as a surprise, as Section 305 of the Compendium of US Copyright Office’s Compendium of US Copyright Office Practices makes very clear:
“The US Copyright Office will register an original work of authorship, provided the work was created by a human being. Copyright law only protects “the fruits of intellectual labor” that “are based on the creative powers of the mind.” (citation omitted) Since copyright law is limited to “original intellectual conceptions of the author”, the Office will refuse to register a claim if it determines that a human being has not created the work. » 2
The courts have followed this reasoning.
In a case where the contents of a book were “dictated” to the copyright plaintiff by “non-human spiritual beings”, the court refused to grant copyright protection in the absence of proof of human involvement in the creation of the work. 3 The Court held:
“[S]An element of human creativity must have taken place for the Book to be copyrighted “…these are not the creations of divine beings that copyright laws were meant to protect.” 4
More interesting was the proponent’s argument as to how he acquired the copyright. If the work was indeed copyrighted and was created entirely by the “creativity machine”, how did the proposed owner obtain the copyright? According to the plaintiff, the copyright was transferred to him by “work for hire” because of his “ownership of the machine”. 7
The implications of this are quite staggering. As we rush more and more into creating more and more intelligent artificial intelligence machines, does all their production belong to me because “you belong to me”? Are machines indeed slaves without rights? Also rather daunting, what are we going to do if we decide that machines do in fact have rights, as the developer suggests?
Continuing this line of thinking, the proponent points out that corporations, which are not human, can claim and own copyrights, often through work for pay. 8 The problem with this reasoning is twofold: first, corporations are not flesh and blood persons, but are treated as persons under the law. They can own property, sue and be sued, and create copyrightable works. Second, all of this is accomplished because businesses are run and run by people, not machines.
The Copyright Office rejects these arguments, based on the fact that the “creativity machine” is incapable of legal consent. He cannot enter into a contract of employment for compensation because he cannot enter into a “legally binding contract”, whether to serve as an employee or an independent contractor. 9
So not only is the AI work not copyrightable due to lack of human involvement, but even if it was copyrighted, it cannot be transferred from the machine. because the machine cannot give legal consent or enter into contracts.
So what are the practical ramifications of the Copyright Office’s decision?
Lying. And a lot.
For the simple reason that somewhere along the line, as demonstrated here, people are going to want copyright protection for “their” AI-generated artwork. Since a copyright lawsuit requires registration, if in the application for registration the plaintiff is honest about the role of the AI, the Copyright Office will reject it and no legal action cannot be brought. Thus, the only recourse is to lie on the claim and state that the declarant and the author are in fact the same person. In other words, copyright office fraud.
I can expect that in a lawsuit like this there will be quite a thorough examination of what precisely the alleged perpetrator’s contribution to the AI work is. Because, as the Copyright Office explained, the AI output has no copyright, and the alleged author has no way to obtain ownership of it.
Or reverse the situation. Suppose the AI work itself infringes, a possibility raised by my previous blog post on the subject. ten If the registration of the offending work has been made and the plaintiff is listed as “author”, will the alleged author be precluded from arguing in the lawsuit that the entire infringement was committed by the machine of artificial intelligence ?
are we in The matrix again?
Or just slowly getting closer to the old phrase of deus ex machine a reality?