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Human authorship is an essential part of a valid copyright claim.

Stephen Thaler v Shira Perlmutter

Civil Action No.22-1564

United States District Court

Howell AB, J

August 18, 2023

Reported by Faith Wanjiku and Brian Okumu

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Copyright law – copyright –registration of copyright works- artificial intelligence- where a copyright claim was lodged for a computer program that was deemed capable of generating original pieces of visual art similar to the output of a human artist- whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation – section 102, Copyright Act of 1976

Brief facts

The plaintiff developed and owned computer programs he described as having artificial intelligence (AI) capable of generating original pieces of visual art similar to the output of a human artist. One such AI system, The Creativity Machine produced the work at issue titled, A Recent Entrance to Paradise.

After its creation, the plaintiff attempted to register the above work with the Copyright Office. In his application, he identified the author as the Creativity Machine and explained the work had been autonomously created by a computer algorithm running on a machine, but that plaintiff sought to claim the copyright of the copyright of the computer-generated work himself as a work-for-hire to the owner of the Creativity Machine.

The Copyright Office denied the application on the basis that the work lacked the human authorship necessary to support a copyright claim, noting that copyright law only extends to works created by human beings

The plaintiff requested reconsideration of his application confirming that the work was autonomously generated by AI and lacked traditional human authorship but contested the Copyright Office’s human authorship requirement and urged that AI should be acknowledged as an author where it otherwise met the authorship criteria, with any copyright ownership vesting in the AI’s owner, which the Copyright Office again refused reiterating its rationale that Copyright law was limited to original intellectual conceptions of the author and the office would refuse to register a claim if it determined that a human being did not create the work.

The plaintiff made a second request for reconsideration along the same lines as his first and the Copyright Office Review Board affirmed the denial of registration, concurring that copyright protection did not extend to the creation of non-human entities.

The plaintiff challenged the above decision in the instant court, claiming that the defendants’ denial of copyright registration to the work titled, A Recent Entrance of Paradise, was arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of the defendants’ statutory authority in violation of the Administrative Procedure Act (APA).

Issue:

Whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation.

Relevant provisions of the law

Copyright Act of 1976, section 102

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

1)      Literary works;

2)      Musical works, including any accompanying words;

3)      Dramatic works, including any accompanying music;

4)      Pantomimes and choreographic works;

5)      Pictorial, graphic, and sculptural works;

6)      Motion pictures and other audiovisual works;

7)      Sound recordings; and

8)      Architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Held:

  1. A valid copyright existed upon a qualifying work’s creation and apart from registration; however a certificate of registration merely confirmed that the copyright had existed all along. Conversely, if the registrar denied an application for registration for lack of copyrightable subject matter – and did not err in doing so – then the work at issue was never subject to copyright protection at all.
  2. The Registrar did not err in denying the copyright registration application presented by the plaintiff. United States Copyright law protected only works of human creation.
  3. Human involvement in, and ultimate control over the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright. Copyright had never stretched so far as to protect works generated by new forms of technology operating absent any guiding human hand. Human authorship was the bedrock requirement of copyright.
  4. The Copyright Act provided copyright protection to original works of authorship fixed in any tangible medium of expression, then known or later developed, from which they could be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. The fixing of the work in a tangible medium had to be done by or under the authority of the author. By its plain text, the Copyright Act required a copyrightable work to have an originator with the capacity for intellectual, creative or artistic labor. The originator had to be a human being in order to claim copyright protection.

Application dismissed.

Relevance to Kenyan Jurisprudence

The concept of artificial intelligence in relation to copyright law in Kenya has not yet been deliberated upon by Kenyan courts neither has there developed an existing legislative and regulatory framework surrounding artificial intelligence. There is no mention of artificial intelligence in the Copyright Act, 2001 and the Data Protection Act, 2019.

This case is significant in the sense that it will allow lawmakers in Kenya to undertake a proactive approach in assessing the technology surrounding artificial intelligence and its potential impacts on various sectors like finance, health, education and government, among others, particularly in the areas of privacy and data protection.

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