Impossibility of Emergent Works’ Protection in U.S. and EU Copyright Law

Abstract

Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they can be transformed through creative expression of an author–– possibly becoming works, but also not being authorless or emergent anymore. This is argued as a matter of the U.S. and EU legal doctrines, the international framework, and copyright theory.

Keywords: Emergent Works, Generative AI, AI-generated works, computer-generated works, copyright, copyright causation, IP, intellectual property, IP Theory, jurisprudence