Have you ever listened to a song written by artificial intelligence? While recorded music has relied more and more on technology to perfect the voice of your favorite artists, AI has been developing rapidly towards creating technology capable of autonomous creation.

The term “Artificial Intelligence” was coined in 1956 at the Dartmouth Conference. In the years since the term was officially used to identify the “simulation of human intelligence processes by computer systems and other machines,” AI has progressed to the point where the law and legal professionals must pay attention to its potential legal implications. One area of the law that is particularly of interest is copyright and the rights afforded to authors of creative works. Just last year, the US Copyright Office had to address the possibility of a non-human author of a copyrighted work when The People for the Ethical Treatment of Animals filed a lawsuit in 2014 on behalf of Naruto, a monkey who had taken control of a photographers camera and snapped a ‘selfie’ of himself. The court ruled that it was outside its purview to decide whether a non-human animal can have standing to sue for copyright infringement.

While Naruto’s case was in progress, the Copyright Office released a statement on the meaning of “authorship” under the Copyright Act. They stated that the Copyright Office would not register works produced by animals or a machine. The Officer further clarified the scope of such a denial of registration by stating that “To qualify as a work of “authorship”  a work must be created by a  human  being” and cited the Supreme Court case Burrow-Giles Lithographic Co.

Machines are now also able to create potentially copyrightable works with no need for human involvement. Sony researchers in Paris developed Flow Machines, a software capable of composing music on its own. The goal behind developing this software was to expand the possibilities of humans and computers collaborating to create music, which seems to fit squarely with the goal of copyright to “promote the Progress of Science and useful Arts”.

The Copyright Office’s refusal to grant a copyright to any non-human creator begs the question: who owns the rights to an animal or AI created work? Most commentators argue that this question should be answered based on agency law, and the person in control of the machine or animal should be afforded a copyright. However, in its statement expressing its refusal to grant copyrights to non-humans, the Copyright Office declared works created by non-humans to be not copyrightable. Is this the best way to handle works created by AI? Does this cut against the Copyright Clause of the Constitution?

Katie O’Brien

 

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