I 'Think', Therefore I Create: Claiming Copyright in the Outputs of Algorithms
60 Pages Posted: 6 May 2019 Last revised: 30 Nov 2019
Date Written: 2018
Artificial intelligence (AI) has often been viewed as either an ally or an adversary — a powerful analytical system to be harnessed or a source of risk to be managed. In copyright law, AI has been treated much the same way, with academic debates focused primarily on whether AI-generated works should be owned by the AI itself, or on a potential copyright battle between the human programmer who created the AI and the end user. However, little attention has been paid to how the use of AI in the creative process can affect the validity of ownership claims asserted by any of these human actors in computer-generated works — a question that may have a far greater impact on creative industries.
In this article, I examine whether the use of AI as a tool of creation interferes with a human’s ability to claim copyright in the resulting works. First, I identify the various human actors who could plausibly own the copyright in the creative outputs of AI and evaluate the relative merits of their claims. In the second part, I analyze the doctrine of authorship to determine not which human should own the copyright in a computer-generated work, but rather whether the use of AI presents a barrier to any human claiming authorship in these outputs. Finally, I explain how AI operates in the creative process and the various mechanisms of control available to humans to modify these outputs.
Ultimately, I argue that the humans who create and use AI retain sufficient control over the AI’s “decisions” that the use of AI does not constitute a barrier to human ownership of copyrightable computer-generated works. The “original intellectual conceptions” represented in computer-generated works are still those of the humans creating and controlling the algorithms used in the creative process, not those of the AI itself. Like a camera, AI functions merely as a tool of creation, not as a sentient “author.”
Keywords: Copyright, AI, Artificial Intelligence, Authorship, Intellectual Property
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