The Review Board of the United States Copyright Office recently confirmed on appeal that copyright does not subsist in a work created by an AI in the United States.1 The decision of the Review Board makes it clear that human authorship is a prerequisite for copyright protection in the United States.
This reflects an ongoing trend in IP law, with IP Offices around the world faced with the question of whether protections can be provided for the product of an AI.
The New Zealand position on copyright protection for machine-generated works is in stark contrast to the US position. The New Zealand Copyright Act 1994 expressly provides that they can be protected by copyright.
Steven Thaler has recently gained some notoriety in IP circles for being the first person to seek patent protection for an AI-generated invention. Mr Thaler’s patent applications, filed in several countries, identify an AI system (called DABUS which stands for “Device for the Autonomous Bootstrapping of Unified Sentience”) as the inventor on his patent applications. He has had varying degrees of success so far. He has failed in the United States, the United Kingdom and New Zealand (among other countries) but succeeded in Australia. Appeals are pending in all those jurisdictions.
In November 2018, Mr Thaler filed an application with the US Copyright Office to register a copyright claim in a two-dimensional artwork called ‘A Recent Entrance to Paradise’ – shown below:
In the application, Mr Thaler identified the author of the work as the “Creativity Machine”, an AI system he devised and owns.
Mr Thaler further stated in his application that the work had been “autonomously created by a computer algorithm running on a machine” and that he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine”.2
The US Copyright Office’s decisions
The US Copyright Office initially rejected the application in 2019 because it “lack[ed] the human authorship necessary to support a copyright claim”. Mr Thaler subsequently requested that the Copyright Office reconsider its initial refusal arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law”.
The Copyright Office reviewed the case but in 2020 upheld its initial findings, determining that the work “lack[ed] the required human authorship necessary to sustain a claim in copyright,” because Mr Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the work”.
Mr Thaler filed a second request for reconsideration, renewing his argument that the human authorship requirement is unconstitutional and unsupported by case law.
The Review Board of the US Copyright Office again dismissed Mr Thaler’s arguments on the same grounds. It held that US Courts interpreting the Copyright Act, including the Supreme Court, have uniformly limited copyright protection to creations of human authors.3
The position under the New Zealand Copyright Act 1994
The position in the United States is in direct contrast to the position under the Copyright Act 1994 in New Zealand (the Act) where machine-generated works are protected by copyright for 50 years. Also, unlike in the United States, copyright cannot be registered in New Zealand. It subsists automatically upon creation of a copyright work, without further formalities.
Section 5(2)(a) of the Act expressly provides that the author of a work, being the person who creates it, can be “in the case of a literary, dramatic, musical, or artistic work that is computer-generated, the person by whom the arrangements necessary for the creation of the work are undertaken; in this case Mr Thaler.
The term “computer-generated” is itself defined (at section 2) as “work [that] is generated by computer in circumstances such that there is no human author of the work”.
Computer-generated works had become relatively common from the 1980s, such as weather maps and telephone directories. However, Parliament clearly did not have AI in mind when almost 20 years ago it adopted, word for word, those provisions from the UK Copyright, Designs and Patents Act 1988.
Still, the Act makes it expressly clear that ‘non-human works’ can be protected by copyright.
Under sections 18(2)(a) and 230 of the Act, the Creativity Machine’s ‘A Recent Entrance to Paradise’ is protected by copyright in New Zealand because Mr Thaler, as a US citizen benefits from the copyright protection afforded by the Act. Also, Mr Thaler, as the person who devised and used the Creativity Machine, owns that copyright.
New Zealand is one of only a handful of countries whose laws afford copyright protection to computer-generated works.
However, a review of the Copyright Act 1994 is underway. As part of that, the government has sought submissions on AI and copyright; it asked “whether any problems are created by the current rules relating to computer-generated works, including in light of new technological developments such as artificial intelligence”.4 The submissions received in response suggest most submitters consider the current approach appropriate.5
Many believe AI is the future. One side of the argument is that protecting the creative output of AI by copyright, giving the owner of that copyright exclusive rights to exploit the work for 50 years, will lead to increased use of AI. The counterargument is that copyright is about rewarding an author’s efforts and exercise of judgment and skills and stopping others from misappropriating those such that there is little point protecting a work that took no human effort to create.
The Ministry of Business, Innovation & Employment has not made a timeline available for next steps in its review of the Copyright Act. It intends to seek further feedback on objectives through its next public consultation. Time will tell whether this unusual facet of the Copyright Act will give New Zealand’s creative and high-tech sectors a competitive edge in this fast-developing field.
If you have any questions about the matters raised in this article please get in touch with the contacts listed or your usual Bell Gully advisor.
2 In other words, Mr Thaler argued he commissioned the Creativity Machine to create the work (like an independent contractor) such that, as the commissioning party, he should own copyright in the work.
3 In its decision, the US Copyright Office refers to several court decisions holding that copyright does not protect works created by, or alleged to have been created by non-humans such as: ‘non-human spiritual beings’, a monkey, a living garden, the Holy Spirit.
4 Issues Paper, Review of the Copyright Act 1994, November 2018 at paragraph 151, available at https://www.mbie.govt.nz/dmsdocument/3441-review-of-copyright-act-1994-issues-paper-pdf
5 Review of the Copyright Act 1994: Issues Paper - Summary of submissions, August 2019 at page 25, available at Review of the Copyright Act 1994: Issues paper - Summary of submissions (mbie.govt.nz)