The Copyright Registration Guidance (Guidance) published by the United States Copyright Office in March mainly addressed whether a human providing simple prompts or other input to an artificial intelligence (AI) algorithm could obtain a copyright registration for the output that the AI algorithm generated based on the human input. Working with AI algorithms all the time, I previously discussed whether the creator of the AI algorithm, and not the user, could obtain a copyright registration for that output. Now a few months later, a court has handed out a decision on whether to grant a copyright registration to the AI algorithm in Thaler v. Perlmutter, 1:22-cv-01564 (D.D.C).
That’s right. The court was confronted with the issue of whether to grant a copyright registration to the AI algorithm or the machine running the AI algorithm, rather than the creator of the AI algorithm. The plaintiff in this case has been a proponent of giving credit to machines running the plaintiff’s AI algorithms instead of the plaintiff directly, regardless of whether the AI algorithms output more algorithms or artworks. See Thaler v. Vidal, No. 21-2347 (Fed. Cir. 2022).
To support the position that the plaintiff’s machine should be granted a copyright registration, the plaintiff consistently represented in the copyright application that the AI algorithm generated the work “autonomously” and that the plaintiff played “no role” in the generation. This representation undermines any creative effort that the plaintiff may have made in producing the work. In general, while an AI algorithm once developed may be executed autonomously without human intervention, the AI algorithm was not developed in a vacuum and a human could have incorporated various creative elements into the AI algorithm, as discussed in my previous blog post.
Continue reading “Can a Human Behind AI Be Creative?”
Digital data is becoming a hot commodity these days because it enables AI tools to do powerful things. Companies that offer content should keep up with the evolving technology and laws that can help them protect their online data.
As data becomes available online, it can be accessed in different ways leading to various legal issues. In general, one basis for protecting online data lies in the creativity of the data under the Copyright Act of 1976. Another basis lies in the technological barrier of the computer system hosting the data under the Computer Fraud and Abuse Act (CFAA) and Digital Millennium Copyright Act. It is also possible to protect online data based on contractual obligations or tort principles under state common law. In terms of the data, a company would need to consider its proprietary data and user-generated data separately, but any creative content is invariably entitled to copyright protection. Without owning the data, the company can still enforce the copyright via an exclusive license from its users. In terms of the computer system, a company could evaluate different security measures for restricting access to the data without severely sacrificing visibility and usability of the company, the data and/or the computer system.
In a typical scenario, a company may make its data accessible to the public as is, publicly available in an obscured or tracked form, and/or accessible only to a select group. Let’s consider these scenarios separately.
Continue reading “Protecting Your Company’s Online Data”
On March 16, 2023, the United States Copyright Office (USCO) published Copyright Registration Guidance (Guidance) on generative AI. In the Guidance, the USCO reminded us that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” This statement curiously conjures the notion of a machine creating copyrightable works autonomously.
While the operation of a machine, or specifically the execution of the underlying AI technology, may be largely mechanical with little human involvement, the design of the AI technology can take significant human effort. If we look at protecting human works that power machines as intellectual property in the broad context where AI has been applied, just like authorship has been an issue when an AI technology is used in creating copyrightable subject matter, inventorship has been an issue when an AI technology is used in generating an idea that may be eligible for patent protection. Unlike the evaluation of authorship, though, the assessment of inventorship puts human contribution to the AI technology front and center. Without getting into the reasons for this difference in treatment, let’s consider the question of whether an AI technology used in creating copyrightable subject matter, or specifically the human contribution to such an AI technology, generally does or does not provide any “creative input.”
Continue reading “Can A Machine Be Creative?”