Artificial Intelligence, Autonomous Creation and the Future Path of Copyright Law

Abstract

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path chosen by the United States in the copyright area will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two types of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses harmonization-based arguments and identifies select instances in which Congress matched the protection offered by other jurisdictions or declined to do so.

This article further shows that global copyright law developments have slowly diverged in the AI area. In view of these growing divergences, U.S. legislators and policymakers are now confronted with a key policy choice at the intersection of copyright and AI: should the United States retain existing approaches, follow other jurisdictions, or work with these jurisdictions to develop harmonized international copyright standards?

To inform the future debate on copyright and AI, the second half of this article highlights the different areas in which substantial legal and policy reform may emerge. It further discusses four options that the United States can take to shape the future path of copyright law: (1) the negotiation of a new international treaty; (2) the development of soft law instruments; (3) the creation of a global multi-stakeholder dialogue; and (4) the utilization of choice-of-law principles by domestic courts to adjudicate multijurisdictional and cross-border disputes.