{"id":2080,"date":"2022-08-20T21:03:36","date_gmt":"2022-08-20T21:03:36","guid":{"rendered":"https:\/\/blogs.luc.edu\/ipbytes\/?p=2080"},"modified":"2024-07-13T06:37:08","modified_gmt":"2024-07-13T06:37:08","slug":"ai-and-ip-bananas-bots-and-brains","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/ipbytes\/ai-and-ip-bananas-bots-and-brains\/","title":{"rendered":"AI and IP: Bananas, Bots, and Brains"},"content":{"rendered":"

As technology develops, the growing presence of Artificial Intelligence (AI) within our lives becomes more prominent. AI predicts what we want to watch on TV<\/a>, what food we want<\/a> to eat, and what we want to type<\/a>. The predictive abilities of AI have begun to even encroach upon the creative space. The use of AI as a tool in arts and science is not new, however. Scientists have used the residual processing power from video game consoles to assist AI in processing models for the potential folded structures of proteins<\/a>. What is new however is the use of AI to create a new product with little human input entirely.<\/p>\n

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This raises important questions in intellectual property (IP) (Particularly in the fields of patent and copyright law.) If an AI invents something useful or creates an expressive work, who will own the IP \u00a0in that work? If the invention is patentable, who is the inventor? The AI or the creator or owner of the AI? Similarly, if an expressive work is copyrightable, who is considered the author? Answering these questions is essential in determining who will ultimately own the IP.<\/p>\n

Thus far, the question of AI inventorship or authorship has hinged on the fact that such creations are a result of a non-human entity. To begin to understand how such creations from non-human entities are treated, we first look at how non-human authorship is treated by the courts.\u00a0 We will start at the beginning \u2013 before AI was considered an inventor.<\/p>\n

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Monkey-See Selfie, Monkey-Do Selfie<\/strong><\/p>\n

The case Naruto v. Slater, <\/em><\/a>\u00a0<\/em>gave us the hilarious predicament in which the courts had to determine whether a monkey was entitled to the copyright interest in a selfie that it took. Wildlife photographer David Slater, set up a camera in an Indonesian reserve. Eventually, a monkey named Naruto interacted with the camera. The monkey smiled at it, and incidentally took a selfie. The photo was lauded and included in Slater\u2019s book<\/a>, listing Slater as the copyright owner of the monkey selfie.<\/p>\n

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The monkey selfie in question that I can use royalty free because the decision from the courts and copyright office have put it in the public domain.<\/em><\/figcaption><\/figure>\n

In comes the People for the Ethical Treatment of Animals (PETA). PETA filed suit<\/a> on behalf of Naruto asserting that the monkey was the true owner of the copyright as the author of the photo. Under US copyright law, the author of the work is the one who actually creates the work<\/a> in question (unless it\u2019s a so-called \u201cwork made for hire<\/a>\u201d that would not apply here since that involves works created for someone, such as an employer).<\/p>\n

On Appeal, the Ninth Circuit ultimately decided<\/a> that the monkey does not have standing to sue for infringement (i.e. violation) of copyright in the picture. The court found that the language in the Copyright Act implied a requirement of humanity when assessing whether an animal could sue for infringement. The district court before it found<\/a> that the an animal couldn\u2019t own the copyright on the selfie because it wasn\u2019t human and cited the Copyright Compendium<\/a>, a guide created by the Copyright Office for its staff, to support its decision. Naruto was out of luck, the copyright on the selfie was not his to own.<\/p>\n

In a separate dispute, the same monkey selfie was uploaded to WIKIcommons without Slater\u2019s consent. Slater\u2019s ownership of the copyright was subsequently challenged. In that case, the U.S. \u00a0Copyright Office<\/a>\u00a0also weighed in. The Copyright Office determined that Mr. Slater, the photographer who set up the camera, didn\u2019t own the copyright on the monkey selfie either. The Copyright Office also cited human authorship as a requirement for copyright protections as noted in Chapter 300<\/a> of the Copyright Compendium. The US Copyright Office finds justification<\/a> for this in the labor theory of copyright<\/a>. The theory states that the purpose of copyright is to protect the fruits of one\u2019s intellectual labor that \u201care founded in the creative powers of the [human] mind.\u201d \u00a0And while the Copyright Office decisions and compendium are not binding on courts, their decisions and internal practices remain persuasive in instances such as the Naruto v. Slater case.\u00a0 This only further adds fuel to the human-authorship-requirement fire.<\/p>\n

With both the courts and copyright office having required authorship be human, the question of the copyrightability of AI generated content gains some much needed clarity.<\/p>\n

Copyright Elements: Human Authorship and Creativity<\/strong><\/p>\n

If this seems confusing, when we break down the elements of copyright, the reasoning of the courts and the copyright office becomes more clear. \u00a0To achieve copyrightability typically, an expressive work must meet the following requirements<\/a>. The work is:<\/p>\n