The meteoric rise of artificial intelligence is making an impact across the legal landscape, as courts grapple with how to handle AI matters while the technology’s development outpaces the courts’ rulemaking procedures. Specifically in the realm of copyright law, AI has been at the forefront of many questions, challenging everything from fair use to inventorship.
For the time being, it seems that humans will allow only other humans to be authors and inventors. In the most recent skirmish on this issue, the U.S. District Court for the District of Columbia ruled that an Artificial Intelligence system cannot be an author under U.S. copyright law. This is consistent with prior court rulings that animals cannot be authors either. Inventions that were created with AI tools but still had direct human involvement are more likely to pass the copyright requirements, but the measurement of how involved a human needs to be in the process to get copyright protection remains unclear, and the development of AI technology is only going to make this question harder to answer.
The arguments favoring human-only authorship tend to focus on this argument: human authorship is a “bedrock requirement of copyright” based on “centuries of settled understanding.” But that is like arguing it has always been this way, therefore it should always remain this way. Putting aside all the other outdated laws courts have recognized were wrong after years of enforcing them, the problem here is the presumption that only humans can create new things. This is probably not true and will only get called into further question as artificial intelligence continues to develop. But to arrive at a definitive conclusion on this issue, we must first develop a better understanding of the nature of creativity, and we are not yet there.
The harder question – which is probably the actual driving force behind the reluctance to grant authorship rights to non-human beings – is who gets to enforce those rights, or in other words, why do we think humans are so special? That is another question that the courts seem unwilling to tackle, and we can expect challenges to these rules to come in the not-so-distant future.
Berenzweig Leonard remains at the forefront of managing intellectual property protections for businesses and individuals. If you have any questions about how to protect your intellectual property, please contact us to speak with a member of our team.
Clyde Findley is Special Counsel and a registered patent attorney in the Intellectual Property practice at Berenzweig Leonard. He can be reached at cfindley@berenzweiglaw.com.