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Artificial intelligence generates real copyright issues

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

When lawmakers passed the first federal copyright law in 1790 to protect rights in maps, charts and books, they could hardly have conceived of an issue under consideration today: Whether the creations generated by computers using artificial intelligence should enjoy copyright protection.

While copyright law has been expanded and amended multiple times since 1790, artificial intelligence, known as AI, presents new questions not explicitly addressed in federal statutes.

What is AI?

An Internet search for the definition of AI yields many different meanings, but most relate in some way to the replication of human thought processes by computers. As one author puts it in an article on G2 Crowd, AI is the belief that "machines can interpret, mine, and learn from external data in a way where said machines functionally imitate cognitive practices normally attributed to humans ... based on the notion that human thought processes have the ability to both be replicated and mechanized."

So, if a computer using AI creates an essay, a symphony or a picture, can that creative work be copyrighted? If so, who would own it? Otherwise, such a work would be in the public domain.

U.S. position

A new article in Above the Law explains that the U.S. District Court for the Northern District of California held in the case of a photo taken by a monkey that copyright is not available to works created by an animal, a case affirmed by the Ninth Circuit Court of Appeals.

The article goes on to clarify that the U.S. Copyright Office has said that it would not register works "produced by nature, animals, or plants"; that to be copyrightable, a work must be "created by a human being"; and that if "traditional elements of authorship" are computer-generated without "creative input or intervention from a human author," such a work could not receive a copyright registration.

International outlook

A British intellectual property expert wrote a 2017 article on this subject in WIPO Magazine which provided an overview of international positions. He advocated for the UK position that copyright should be granted to the person who "made the operation of artificial intelligence possible," such as the programmer. This would make it financially feasible for business interests to invest in AI.

Obviously, as AI evolves, related copyright issues will also, but where we end up is still unknown. Anyone with questions about protecting computer- or machine-made creative works should speak to an experienced intellectual property lawyer who keeps up on this quickly evolving area of copyright law.



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