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  • Writer's pictureDavid Baker

Artificial Intelligence still can’t hold a copyright

Much has been written of late about The Metaverse, non-fungible tokens (NFTs), and the possibility (likelihood?) that The Singularity may be right around the corner, but robots, animatrons, and HAL 9000 wannabes everywhere were yet again denied the one thing they (purportedly) crave the most. No, not the possibility of becoming a real boy. They have been denied the right to be legally recognized as the creator of a copyright.

Stephen Thaler and his artificially intelligent creations had hoped otherwise.

On February 14, 2022, The Review Board of the United States Copyright Office ("Board") again denied registration for an image generated by artificial intelligence concluding that human authorship is required under U.S. copyright law. Citing the U.S. Copyright Act, the Board acknowledged that the scope of this protection is "very broad," but noted that it was not unlimited. Indeed, the Copyright Act affords protection to "original works of authorship" that are fixed in a tangible expression, but no court has yet addressed whether artificial intelligence can be an author for copyright purposes and so the Board saw no reason to depart from nearly 150 years of case law.

Dr. Stephen Thaler is a St. Charles, Missouri inventor and founder of Imagination Engines, Inc., a self-declared “pioneer in the field of artificial intelligence.” Thaler is also the creator of an “artificial intelligence machine” and creation of what he calls DABUS, an acronym for “Device for the Autonomous Bootstrapping of Unified Sentience.” DABUS is a type of creativity machine that was created to generate art and inventions through a system of neural networks. Neural networks are meant to mimic the human thought process, allowing DABUS to connect various concepts and ideas and create outputs in a manner that is reported to be similar to how a human generates new ideas.

And for the last several years, Thaler has attempted to obtain legal protections for creations made by DABUS and has even found a degree of success in Australia and South Africa. However, he and DABUS have not fared so well before the UK Court of Appeal, the European Patent Office, and the United States Patent and Trademark Office ("USPTO") decisions requiring an inventor to be a natural person. Thaler also currently has DABUS patents pending in Brazil, Canada, China, India, Israel, Japan, New Zealand, Korea, Saudi Arabia, Switzerland and Taiwan.

In November 2018, Thaler submitted a colorful image created by DABUS and labeled "Recent Entrance to Paradise" (depicting a set of disused railroad tracks running through a tunnel of bougainvillea) to the U.S. Copyright Office for registration. He included a note stating that the work "was autonomously created by a computer algorithm running on a machine" and that he was "seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine." The Copyright Office refused to register the claim, finding it "lack[ed] the human authorship necessary to support a copyright claim."

It then denied a September 2019 request for reconsideration as well as a May 2020 request based on the argument that copyright law already allowed "non-human entities to be authors under the work make for hire doctrine" and that the Office's rejection relied on "non-binding judicial opinions from the Gilded Age[.]" Unconvinced, the Board again rejected Thaler's claim and concluding that "human authorship is a prerequisite to copyright protection."

For the complete U.S. Copyright Office Review Board ruling, see here.

WHY IT MATTERS. Already, the U.S. Supreme Court has interpreted the Copyright Act to extend only to "creations of human authors," and various lower courts have followed the Supreme Court's lead in rejecting attempts to copyright works "authored" by "non-human spiritual beings," monkeys, "natural forces," or depicting "ideas, first expressed by nature" without additional artistic contribution.

Nevertheless, the Board’s decision left open the possibility for further refinement of Thaler’s arguments, especially as AI-created content such as is already occurring in The Metaverse and the world of NFT’s continues to expand, as well as the greater likelihood that Congress will eventually have to address the issue should it decide that the protections of copyright law should be expanded.

For the time being, creative works generated without human intervention remain beyond the scope of copyright protections, but it seems likely this will change as AI continues to evolve in the eyes of the law.

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