Artificial intelligence (“AI”) has made it possible to achieve wonderful things, such as the completion of symphonies[1] or their movements.[2] However, the United States (“U.S.”) is leaving important AI-generated artwork unprotected under its current Copyright regime.[3] This frustrates the goals of Copyright Law, which aim to incentivize creativity and promote societal development through the protection of creative works.[4] Thus, the U.S. should change its Copyright policy to mimic that of the United Kingdom (“U.K.”) and China, who, through a different approach, fulfilled all three copyright requirements, including human authorship.

For any work to be copyrightable, it must meet three requirements: fixation, authorship, and originality.[5] In the U.S., computer-generated artworks are not copyrightable because the authors are not humans. For example, in Naruto v. Slater, the Court of Appeals of the Ninth Circuit ruled that a selfie taken by a monkey was not copyrightable because the author was not a human being.[6] Moreover, the U.S. Copyright Office has proclaimed that only humans may be authors.[7] Nowadays, AI-created artwork falls within the public domain in the U.S., meaning they can be copied without legal consequences, which is why the choice of leaving such work without protection frustrates the purpose of Copyright Law.[8] Therefore, the U.S. should consider international models that afford Copyright protection for computer-generated works. 

The U.K. addressed the copyrightability of computer-generated works with the Copyright Designs and Patents Act in 1988.[9] Section 9(3) states that in computer-generated artworks, “the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”[10] Although the scope of this section remains unclear,[11] in Nova Productions Ltd. v. Mazooma Games Ltd., the court still recognized the computer-generated artwork––created by a software designed by Mr. Jones––in a video game software dispute.[12] This demonstrates the recognition of AI-generated works for the fulfillment of the human authorship requirement.

Although there is no formal protection for AI-generated artwork in China’s Copyright Law, a 2019 case from the Shenzhen Nanshan District Court provides some guidance. In Tencent v. Yingxun,[13] the court held that Dreamwriter, an AI-writing system from Tencent, wrote an article that fulfilled the requirements to be a literary work with novelty and expression.[14] They also held that AI is a tool used to support the personal decisions of the creators, and hence AI usage does not automatically bar the human authorship requirement.[15] Therefore, when Yingxun copied Tencent’s article without consent, the defendant incurred Copyright infringement.[16] This demonstrates that the court values human participation as a requisite for Copyright protection, which can be accomplished through AI-generated work. The U.S. could draw from this example and similarly interpret and confirm the presence of human authorship in situations involving AI.

Considering our technological life, protecting AI-generated works would further the purpose of U.S. Copyright Law, which is to incentivize creativity and progress. The copyrightability of such works has legal recognition in the international realm as demonstrated above. If the U.S. adopted a similar approach, the human authorship requirement would be fulfilled through the person who creates the AI. Doing so would fill the gap in the system and further societal development.

 

---

[1] E.g., Dirk Wende, Performance of Beethoven's 10th Symphony Completed by AI Rescheduled, Telekom (Apr. 29, 2021), https://www.telekom.com/en/company/details/performance-of-beethovens-10th-rescheduled-625618.

[2] E.g., Elizabeth Davis, Schubert's 'Unfinished' Symphony Completed by Artificial Intelligence, Classic FM (Feb. 6, 2019, 1:26 PM), https://www.classicfm.com/composers/schubert/unfinished-symphony-completed-by-ai/.

[3] See Nina I. Brown, Artificial Authors: A Case for Copyright in Computer-Generated Works, 20 Colum. Sci. & Tech. L. Rev. 1, 4 (2018).

[4] Id. at 20-21.

[5] Id. at 17-19.

[6] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[7] See U.S. Copyright Off., Compendium of U.S. Copyright Office Practices § 313.2, at 21 (3d ed. 2017) (citing Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)).

[8] See Brown, supra note 3, at 4, 20-21.

[9] Copyright, Designs and Patents Act 1988, (UK), https://www.legislation.gov.uk/ukpga/1988/48/section/9/2003-10-31.

[10] Copyright, Designs and Patents Act 1988, c. 48, § 9(3) (UK), https://www.legislation.gov.uk/ukpga/1988/48/section/9/2003-10-31.

[11] See Toby Bond & Maisie Briggs, AI and Copyright: What Next in the UK?, Bird & Bird (July 2021),

https://www.twobirds.com/en/news/articles/2021/uk/ai-and-copyright-what-next-in-the-uk.

[12] See Nova Prods. Ltd. v. Mazooma Games Ltd. [2006] EWHC 105 (Ch).

[13] See Shenzhen Tencent Comput. Sys. Co. v. Shanghai Yingxun Tech. Co., Yue 0305 Min Chu No. 14010 (Guangzhou Shenzhen Nanshan People’s Ct. Nov. 25, 2019) (China).

[14] See Youping Ma & Guoquan Yang, China: Artificial Intelligence: Can AI-created Works Be Copyrighted?, Managing IP (Mar. 17, 2020), https://www.managingip.com/article/b1kqljbrkclb41/china-artificial-intelligence-can-ai-created-works-be-copyrighted.

[15] Id.

[16] Id.