The U.S. Patent and Trademark Office last week held its second public meeting on Developing the Digital Marketplace for Copyrighted Works, where one of the topics of discussion was whether and how works authored by a computer running artificial intelligence software should be regarded for purposes of copyright law (disclosure: I was an informal adviser to the PTO on the program for the event).
The question is not merely academic. Companies like Amper Music in the U.S. and Aiva Technologies in Luxembourg are using A.I systems today to create original production music, while Google engineers have taught A.I. systems to create music and art, and to take photographs that professional photographers have trouble distinguishing from professional landscape shots. Works created at least in part by machines are already entering the stream of commerce.
There is a broad, although not universally shared, consensus among legal experts that under U.S. copyright law, non-human actors, whether machine or monkey, cannot be considered to own a copyright. But that still leaves a host of vexing questions likely to occupy courts for many years. If the machine cannot own the copyright on a machine-made work, can anyone, and if so, whom? The owner of the machine? The author of the software program? The human who pushes “start”? Or, should machine-made works be considered in the public domain?
If a copyright is to be assigned, how much creative input must a human provide, and at what stage of the process, to claim it? If there is no copyright, what if any other legal basis is there for licensing their use?
At the Digital Entertainment World conference in Los Angeles February 5-6, KlarisLaw and KlarisIP managing partner Edward Klaris will explore some of those questions in a special presentation called From Art to Artificial Intelligence.
Klaris previewed some of his thoughts on the topic in a blog post this week for Intellectual Property Watch:
The concept of encouraging the production of creative work by protecting it — incentivizing authors financially — is embedded in our Constitution. The Intellectual Property Clause expressly aims “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
In drafting the black-and-white clarity of this clause, our framers could hardly have anticipated the highly gray area of bots making copyrighted works. You don’t have to incentivize a bot; a machine simply does what it was programmed to do without any need for financial motivation. That is why the court declined to award a copyright in a work created by a monkey. Monkeys are not financially incentivized to create works, and even if they were, the monopoly afforded copyright holders was not intended for animals.
In a world where bots may eventually dominate the creative space — manipulating, arranging, color-correcting, filming, and ordering literary, audio and visual content – courts may decide that works created without human input belong in the public domain with no protection. Or, if copyright is granted, bots’ output would be protected for potentially more than 100 years under current copyright law. Which is better? What path best promotes our country’s fundamental interest in “the progress of science and useful arts”? And, should copyright subsist for fewer years under certain circumstances?