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Critical requirement for copyrights: Be a human

Mar 17, 2022 | Copyright Law

There are three requirements people must fulfill to copyright something:

  • The work must be fixed in a permanent state.
  • It must be an expression of an idea.
  • The work must be creative. 

However, there is another requirement that may not be as explicit: copyrights can only extend protection to human-created work. 

IP and AI

This issue of human-created work has come up repeatedly in recent years as artificial intelligence technology expands and improves. 

For instance, a Copyright Review Board recently issued a ruling regarding a copyright application for artwork created by a computer algorithm running autonomously on a machine. The claimant listed the author as the Creativity Machine and named himself as the owner of the machine.

The Office stated that it could not issue a copyright, as the law requires that work be “the fruits of intellectual labor” that are “founded in the creative powers of the [human] mind” to have protection. Similarly, the Office would not register work created by animals and natural forces.

Thus, in this case, because there was no human intervention in the creation of the work in question, the Office would not register it.

Will this change?

The copyright system has been in place for a century. It is not surprising that it does not address or take into account works entirely created by a computer algorithm. 

Whether that will change remains to be seen. As discussed in this article about the recent decision from the Copyright Office, the man who had submitted the AI-generated work for protection says that the requirement for creators to be human is unconstitutional. He did not raise this issue in his registration, so the Office did not need to decide on that matter. 

However, as AI contributes more to society and humankind, challenges to the laws that require human authorship are likely. And should the laws or the opinions of the Copyright Office change in response, we will certainly follow such developments. 

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