US ruling on AI and copyright reflects ongoing UK debate

Out-Law News | 25 Feb 2022 | 11:29 am | 3 min. read

Creative works generated autonomously by machines without human creative involvement in the output are not eligible for copyright protection in the US, the Review Board of the US Copyright Office has ruled.

The review board rejected claims made by US scientist and technologist Dr. Stephen Thaler that its insistence that US copyright law only applies where there is evidence of human authorship is unconstitutional and unsupported by case law.

Thaler, who has also been at the centre of disputes globally over the application of patent rights to AI-generated inventions, had applied to the US Copyright Office in 2018 seeking to register a copyright claim in a two-dimensional piece of artwork he says was autonomously created by AI without any creative contribution from a human. Thaler said the author of the work, titled ‘A Recent Entrance to Paradise’, is the “Creativity Machine”. He applied for the copyright in the work to be transferred to him as owner of the machine.

The US Copyright Office rejected his application in 2019, finding that it “lacks the human authorship necessary to support a copyright claim”. However, Thaler asked the Copyright Office to reconsider the issue, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law”.

The Copyright Office reviewed the case but in 2020 upheld its initial findings, determining that the work “lacked the required human authorship necessary to sustain a claim in copyright,” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the work”. It added that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author”.

However, Thaler requested that the Copyright Office reconsider the request for a second time. He supplemented his original arguments by advancing public policy arguments why the Copyright Office should register copyrights in machine-generated works. The Review Board of the US Copyright Office has now issued its ruling on the matter, again dismissing Thaler’s claims.

The review board assessed what it considered to be US law makers’ intentions in drafting the US Copyright Act as well as how courts in the US have subsequently interpreted its provisions in reaching its decision. It reiterated the requirement for human authorship for works to be eligible for copyright protection under US copyright law.

Gill Dennis, an intellectual property law expert at Pinsent Masons, said that while the protections afforded under current copyright laws in the US and UK do differ, the case before the review board chimes with an ongoing debate in the UK over the extent to which UK copyright law in future should apply to outputs from artificial intelligence (AI) systems.

Dennis said: “The position in the US on copyright protection for works generated solely by AI is in direct contrast to the position in the UK, where machine generated works are protected by copyright for 50 years, and this is enshrined in copyright legislation. The UK is one of only a handful of countries which copyright protects machine created works and this is seen by some as giving the UK a competitive edge in the creative space.”

“The decision in the US directly reflects the ongoing debate in the UK around the copyright protection of machine generated works. Like Thaler, many believe that AI is the future and that copyright law should move with the times, while artists and other creative entities take the same stance as the US Copyright Board, which is that copyright is about recognising and rewarding human creative endeavour alone,” she said.

“It is clear from the decision of the US Copyright Board that the need for human authorship is deeply embedded in the US legal system. The reliance on some very old case law to support the decision suggests this is unlikely to change unless there is clear legislative intervention. In parallel, and demonstrating what a hot topic this is, the UK Intellectual Property Office recently consulted on whether the position in the UK should be changed to align more closely with countries like the US, proposing that AI created works should be protected only for a reduced copyright term, or not be protected by copyright at all,” Dennis said.

“Although an announcement on the outcome of the consultation is still awaited, a decision that AI created works should not be copyright protected at all would be surprising. It would run counter to the UK government’s ambitions to establish the UK as a world leader in AI. Technology companies must be incentivised to develop AI. Giving them exclusive rights over AI output is central to achieving that,” she said.