Evelyn Waugh once famously remarked that having a strong interest in ecclesiastical matters could potentially lead to insanity. In a similar vein, one could argue that newspaper columnists who delve into the realm of intellectual property law tread on precarious ground. However, let us embrace this risk, for life is fleeting, at least until Elon Musk creates his own electronic clone.
On August 18, a federal judge in the United States rejected an attempt to copyright an artwork created by an AI. The artwork in question, titled “A Recent Entrance into Paradise,” depicts a three-track railway entering a partly pixellated tunnel surrounded by foliage. The creation process of this artwork was autonomous, carried out by a computer algorithm known as the Creativity Machine.
Back in 2018, Stephen Thaler, the CEO of Imagination Engines, a neural network firm, claimed that the Creativity Machine was the sole creator of the artwork. However, the US Register of Copyright denied the application, arguing that the connection between human thought and creative expression is a vital aspect of copyright protection.
Thaler was dissatisfied with the decision and filed a lawsuit contesting it. He argued that AI should be recognized as an author if it meets the criteria for authorship, with the copyright ownership belonging to the machine’s owner (in this case, him). Additionally, he sought judicial review to determine whether a work solely generated by a computer falls under copyright protection.
This brings us to Judge Beryl A Howell of the district court in Washington DC. She ruled that the register had not erred in denying Thaler’s copyright application, emphasizing that US copyright law exclusively protects works of human creation. Nevertheless, she acknowledged Thaler’s argument that copyright law has adapted to cover works developed using new technologies and media.
The law, with all its grandeur, appears to be receptive to technological innovation. However, Judge Howell reiterates that human creativity remains the fundamental element of copyrightability, even when it is channeled through new tools and media. She references a Supreme Court ruling from as far back as 1884, in which photography was recognized as copyrightable, solidifying the legal status of photographs as creations of “authors,” or photographers. The court recognized that although a camera mechanically reproduces a scene, it is the photographer’s mental conception and decisions that determine the final form of the photograph.
It is worth noting that when this enlightened view was established in 1884, cameras were essentially primitive and analog. They relied on a photographer’s manual adjustments of exposure, shutter speed, aperture, and the physical development of chemically etched images on glass plates or celluloid strips.
Fast forward to the present day, where digital cameras dominate and are integrated into smartphones. While the user selects the subjects to photograph, most of the image processing occurs through computational algorithms, often utilizing powerful artificial intelligence. As a result, it has become challenging to capture a technically flawed photograph, as AI algorithms compensate for exposure, focus, and even stabilizes images to reduce blur caused by camera shake. The craft and creativity once associated with human intervention in photography have been vastly automated. However, for now, photography still satisfies the “human involvement” criterion established in the 1884 judgment and current copyright legislation. Yet, it is reasonable to assume that this may evolve in the future.
Judge Howell concurs, suggesting that as artists increasingly incorporate AI into their creative processes, it will raise intricate questions about the level of human input necessary to qualify an AI user as the “author” of a generated work. We are undoubtedly venturing into new territories within copyright law.
In closing, it may be possible that Mr. Thaler will eventually obtain his desired copyright, provided he lives long enough to witness further legal developments in this field.
On a different note, here are a few intriguing reads I’ve come across:
– “Eleven Theses on Globalization” by economist Branko Milanović, which provides insightful worldly wisdom.
– “Place, Pastness, Poems: A Triptych,” an exquisite essay by the late Seamus Heaney in Salmagundi magazine, delving into the poetic utilization of memory.
– “The AI Power Paradox: Can States Learn to Govern AI – Before It’s Too Late?” an eye-opening essay by Ian Bremmer and Mustafa Suleyman in Foreign Affairs, exploring the challenges of governing artificial intelligence.
What I’ve been reading
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