US Copyright Office refuses to register AI-generated work, finding that "human authorship is a prerequisite to copyright protection"

· copyright,AI,US Copyright Office

Can a work entirely created by a machine be protected by copyright?

On Valentine’s Day, the US Copyright Office (Review Board) answered this question with a heartbreaking ‘no’, holding that “copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind”” and consequently refusing to register the two-dimensional artwork 'A Recent Entrance to Paradise' below (the ‘Work’):

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Creativity Machine's A Recent Entrance to Paradise


In 2018, Stephen Thaler (if the name rings an AI inventor-bell then you’re hearing it right) applied to register a copyright claim in the Work, indicating “Creativity Machine” as the author and Thaler as the owner of such machine.

The application stated that the Work had been autonomously created by a computer algorithm running on a machine. Registration was sought as a work-for-hire to the owner of the Creativity Machine.

In 2019, the Copyright Office rejected the application, holding that human authorship is necessary to support a copyright claim.

This conclusion is in line with what is expressly stated in the Compendium of Practices (p. 21-22):

[T]he Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” U.S. COPYRIGHT OFFICE, REPORT TO THE LIBRARIAN OF CONGRESS BY THE REGISTER OF COPYRIGHTS 5 (1966).

Thaler then requested a reconsideration of the decision, arguing that the human authorship requirement would be contrary to the US Constitution and be unsupported by either statute or case law. Such a request was once again unsuccessful.

A second request for reconsideration followed, also submitting that the Copyright Office “is currently relying upon non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.”

The Review Board’s decision

The Review Board was, once again, unimpressed. It held that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

The phrase ‘original works of authorship’ under §102(a) of the Act sets limits to what can be protected by copyright. As early as in Sarony (a seminal case concerning copyright protection of photographs), the US Supreme Court referred to authors as human.

This approach was reiterated in other Supreme Court’s precedents like Mazer and Goldstein, and has been also consistently adopted by lower courts.

While no case has been yet decided on the specific issue of AI-creativity, guidance from the line of cases above indicates that works entirely created by machines do not access copyright protection. Such a conclusion is also consistent with the majority of responses that the USPTO received in its consultation on Artificial Intelligence and Intellectual Property Policy.

The Review also