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Works produced by artificial intelligence systems CANNOT enjoy protection under copyright law in the United States, according to a recent case. How shall businesses protect their assets, then?
The US case on the copyright protection of artificial intelligence creations and the precedent
In the first landmark decision concerning Thaler v. The Register of Copyrights, the US District Court held that works created by artificial intelligence cannot enjoy copyright protection since only works created by human hands qualify for copyright.
Under US law, a precondition for obtaining copyright protection is the prior registration of the pertinent work. To this end, Stephen Thaler endeavored to register “A Recent Entrance to Paradise,” a work generated by his artificial intelligence system, the “Creativity Machine.” This application was, however, denied.
Thaler’s contention, which advocated for the AI’s entitlement to copyright, found no traction in Court. The legal doctrines he invoked, common law property principles and the work-for-hire doctrine, were deemed inapplicable. Central to this determination was the Court’s view that these doctrines presuppose an existent valid copyrightable work—a status not afforded to Thaler’s AI-conceived art.
However, it merits consideration whether Thaler, had he posited the artwork as his own creation with the AI system serving merely as an instrumental aid, would have encountered a different judicial outcome.
The precedent view of the US Copyright Office on the registration of artificial intelligence works
The position of the Court is in line with the previous position of the US Copyright Office. In the notable case concerning the graphic novel “Zarya of the Dawn,” the US Copyright Office declined to register images produced using the image generation software Midjourney.
In the aftermath of this case, the US Copyright Office promulgated guidance delineating the parameters for registering works infused with AI-generated content. Central to this guidance is the query: were the seminal elements of the work the product of machine or man? If found to be the former, the work, devoid of human authorship, remains outside the ambit of registration.
A composition amalgamating human and AI inputs may obtain copyright, but solely for portions authored by human agency. This position does not derogate from the legitimate use of technological tools in the creative process. The crux remains the degree of human creative dominion over a work, which determines its eligibility under copyright statutes.
What would have been the verdict in Europe?
Like its US counterpart, European Union copyright jurisprudence is anchored in promoting and recognizing human creativity and artistic endeavors. Absent demonstrable human input, copyright protection still needs to be attainable. Even with this, as the US Copyright Office has elucidated, a pressing need exists to calibrate human authorial rights with the burgeoning realm of AI-mediated creation exists.
While humans invariably shape AI outputs through guiding inputs, a pertinent legal inquiry remains: Is such guidance sufficiently substantial? Is it sufficient that humans created the prompts from which the artificial intelligence system generated the work? In a landmark decision by the Italian Supreme Court, it was articulated that mere reliance on software does not ipso facto vitiate the copyrightability of a work. Rather, the criterion of creativity necessitates heightened scrutiny.
How shall businesses protect works created with the support of AI?
In this evolving legal milieu, it becomes imperative for creators to document their contributions to AI-facilitated creations meticulously. Our endeavors at DLA Piper are geared towards assisting clients in ascertaining their contributory extent, navigating the intricacies of IP rights, and establishing robust internal policies governing AI deployment.
In scenarios where copyright safeguards are elusive, entities might still seek recourse under unfair competition doctrines. This avenue, however, is fraught with complexities. Hence, a proactive legal posture, encompassing the formulation of guiding internal policies and conducting rigorous due diligence on the genesis of creations, is indispensable to circumvent potential business vulnerabilities.
On a similar topic, you can find the following article interesting “Generative artificial intelligence (AI) and prompt protection under intellectual property law“.