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Should copyright protection be given for AI-generated inventions? Stephen Thaler, the president and CEO of Imagination Engines, thinks so.

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In 2018, Thaler filed an application to register a copyright for an AI-generated work produced by one of his AI systems, the Creativity Machine. The work, titled “A Recent Entrance to Paradise,” is <a href="https://www.urbasm.com/2016/05/artificial-intelligence-visions-art-of-a-dying-brain/">part of a series that depicts a simulated near-death experience</a>. The U.S. Copyright Office denied Thaler’s application on the grounds that the work lacked human authorship. Last week, Thaler sued the Copyright Office, alleging that the agency’s denial of his copyright registration is an arbitrary and capricious action and not in accordance with the law. You can find the complaint <a href="https://assets.law360news.com/1499000/1499561/https-ecf-dcd-uscourts-gov-doc1-04519263653.pdf">here</a>.

Thaler’s complaint is the most recent in his attempts to secure AI intellectual property rights. On Monday, <a href="https://www.ipintelligencereport.com/2022/06/07/federal-circuit-hears-case-on-whether-an-ai-generated-invention-is-patentable/">Thaler argued before the U.S. Court of Appeals for the Federal Circuit</a> to persuade the court that his AI system DABUS should be credited for two inventions it generated – an improved beverage container and a “neural flame” device used in search-and-rescue missions.

The Copyright Act affords protection to “original works of authorship.” According to Thaler’s complaint, the act does not limit authorship to natural persons. But the question remains as to what <em>does</em> constitute authorship. If machines such as the Creativity Machine and DABUS qualify as authors, would that recognition translate to other nonhuman entities? Does Naruto, a macaque who snapped a “monkey selfie,” qualify? What about a <a href="https://law.justia.com/cases/federal/district-courts/FSupp/895/1347/1570651/">spiritual being who authors a book</a>?

Historically, the question of authorship in AI was not an issue because AI was used as a tool in the creative process, equivalent to a pen and paper. With technological improvements, however, AI has upgraded from tool to creator. From 2002 to 2018, annual AI patent applications increased from 30,000 to 60,000. Additionally, the share of all patent applications that contain AI increased from 9 percent to about 16 percent.

For creators who utilize AI, the courts’ determinations could have significant impact. AI is already being used to generate works ranging from <a href="http://www.flow-machines.com/history/events/ai-makes-pop-music/">music</a> and <a href="https://techthelead.com/angelina-ai-games/">gaming</a> to <a href="https://reutersinstitute.politics.ox.ac.uk/our-research/putting-europes-robots-map-automated-journalism-news-agencies">journalism</a> and <a href="https://www.theatlantic.com/technology/archive/2019/03/ai-created-art-invades-chelsea-gallery-scene/584134/">art</a>. Should courts maintain that a human author is essential to receiving copyright protection, these works would be deemed free of copyright because they are not created by a human author. And despite investments made by companies and individuals in AI systems to generate these types of works, such works would then not be protected by law and could be used freely by anyone. As AI continues to improve, the question of authorship becomes more pressing.

A Recent Entrance to Copyright Protection: Can AI Qualify as an Author Under U.S. Copyright Law?