The UK Supreme Court’s decision is expected in September.
As Justice Beryl Howell echoed in her recent decision in the United States, one of the main reasons for these failures is that “human authorship is a fundamental requirement of copyright law.”
In almost all countries, copyright requires an act of authorship: the work of art must reflect someone’s original mental conception. The law has always held that coming across something beautiful – like the pattern on a piece of granite in a quarry or tide-molded driftwood on a beach – is not the same as creating it from from zero. As far as law is concerned, the product of an AI producing results is the former, not the latter.
“In terms of doctrine, this is completely impossible until you can demonstrate that AI has a truly independent mental design,” says Sag. “And that’s just not how these AIs work: they’re C3PO and Hal 9000 stuff… You can’t just tell a story of absurd incentive. Copyright is about protecting original expression. And that means you have to express something.
This has been tested on cases with animals. Mike Masnick, Technology Blog Editor Techdirtwho has followed Thaler’s campaign for years, compares the arguments to those of the intellectual property litigation firm that tried to argue for a monkey selfie, a smiling macaque, which took a photo by pulling on a cable attached to a tripod. The courts have held that to benefit from copyright, one must be a human being.
Likewise, when it comes to scientific discovery, there is precedent that runs counter to Abbott’s arguments. When, for example, a chemical reaction leads to an unexpected but valuable byproduct, patent law considers the invention to be conceived at the moment the inventor recognizes it.
“Ultimately, we don’t need AI inventors to patent the results of emerging processes,” says Sag.
This obviously does not mean that legal discussions on this issue are over. And people can find ways to exploit arguments made in court. In the United States, actors and writers are currently on strike, in part over concerns about how AI could be used to replace them or diminish their role in creative processes. If a court were to set the level of human involvement necessary for something to be copyrightable, it could be a powerful negotiating tool.
Even if no serious studio would produce a film entirely written and generated by AI, Masnick says, the strikers might have some sort of leverage to argue that, as he puts it, “you need our involvement if you want to ensure there is a strong copyright here.
And as AI prompts become more complex and collaboration between AI and humans moves closer to creative dialogue, our view of what constitutes authorship may need to change. “The least interesting question [about copyright and AI] If there is no human involvement, should there be copyright? Sag said. “The answer is so blinding: obviously, no, that shouldn’t be the case. It’s, you know, it’s a shame that it’s taking us time on the really interesting and important question, which is: how much human involvement is enough?
