Auctorem ex Machina: A Case for Human Copyright Authorship in Works Created Using Generative Artificial Intelligece

Auctorem ex Machina: A Case for Human Copyright Authorship in Works Created Using Generative Artificial Intelligece

Journal article

1 online resource

Ours is an era of artificial relationships, an age where man is as connected to the machine as he is to other people. The metes and bounds of copyright protection are routinely tested by an expanding constellation of new technologies. Technological development routinely outpaces the slow engine of jurisprudence, but the legal field has finally come to consider the same question Alan Turing famously posed nearly a century past: can machines think? Turing went on to declare the question “too meaningless to deserve discussion[,]” though he conceded that language and popular opinion would eventually regard machines as “thinking” without major contradiction. Turing's point is best served through the name of the technology at issue here: artificial intelligence (AI). Turing posited the notion that “A computer would deserve to be called intelligent if it could deceive a human into believing that it was human.” However fascinating, U.S. law expressly requires that copyright protection vest only in human beings, not animals or machines. This Article will consider the bounds of the human authorship requirement in copyright law, the U.S. Copyright Office's (hereinafter *438 the “Office” or “Copyright Office”) exclusion of prompt engineering in generative AI from authorship, and advocates for the inclusion of certain large model AI outputs within the scope of works created by human authorship. Ultimately, the test for authorship must consider the originality of the underlying work and the putative author's creative control over the conception. The second factor asks whether the work produced constitutes a reasonable and meaningful manifestation of the author's intellectual thought. When a work is created using marginally supervised automated processes and contains subject matter not staged by the putative author, the determinative question is whether the copyright claimant's creative inputs establish a limited universe of foreseeable results. Given the incentive-driven purposes of the U.S. Constitution's Copyright & Patent Clause, determining the scope of copyright protection in works created using new technologies is of paramount importance. Too little protection and artists may lose valuable governance over their works. Too much protection and copyright risks an Icarian event where First Amendment concerns arise to strike down an unjust monopoly and safeguard free speech. There exists no bright line answer to reconciling the relationship between copyright and AI.

Crossref

AIPLA Quarterly Journal, Summer 2024, Volume 52, Issue 3, p. 435.

[New York, NY] : Thomson Reuters, 2024.

English

https://1.next.westlaw.com/Copyright

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