US Copyright Office Gets It Right (Again): AI-Generated Works Do Not Get A Copyright Monopoly

from the this-is-correct dept

For years, throughout the entire monkey selfie lawsuit saga, we kept noting that the real reason a prestigious law firm like Irell & Manella filed such a patently bogus lawsuit was to position itself to be the go-to law firm to argue for AI-generated works deserving copyright. However, we've always argued that AI-generated works are (somewhat obviously) in the public domain, and get no copyright. Again, this goes back to the entire nature of copyright law -- which is to create a (limited time) incentive for creators, in order to get them to create a work that they might not have otherwise created. When you're talking about an AI, it doesn't need a monetary incentive (or a restrictive one). The AI just generates when it's told to generate.

This idea shouldn't even be controversial. It goes way, way back. In 1966 the Copyright Office's annual report noted that it needed to determine if a computer-created work was authored by the computer and how copyright should work around such works:

In 1985, prescient copyright law expert, Pam Samuelson, wrote a whole paper exploring the role of copyright in works created by artificial intelligence. In that paper, she noted that, while declaring such works to be in the public domain, it seemed like an unlikely result as "the legislature, the executive branch, and the courts seem to strongly favor maximalizing intellectual property rewards" and:

For some, the very notion of output being in the public domain may seem to be an anathema, a temporary inefficient situation that will be much improved when individual property rights are recognized. Rights must be given to someone, argue those who hold this view; the question is to whom to give rights, not whether to give them at all.

Indeed, we've seen exactly that. Back in 2018, we wrote about examples of lawyers having trouble even conceptualizing a public domain for such works, as they argued that someone must hold the copyright. But that's not the way it needs to be. The public domain is a thing, and it shouldn't just be for century-old works.

Thankfully (and perhaps not surprisingly, since they started thinking about it all the way back in the 1960s), when the Copyright Office released its third edition of the giant Compendium of U.S. Copyright Office Practices, it noted that it would not grant a copyright on "works that lack human authorship" using "a photograph taken by a monkey" as one example, but also noting "the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."

Of course, that leaves open some kinds of mischief, and the Office even admits that whether the creative work is done by a human or a computer is "the crucial question." And, that's left open attempts to copyright AI-generated works. Jumping in to push for copyrights for the machines was... Stephen Thaler. We've written about Thaler going all the way back to 2004 when he was creating a computer program to generate music and inventions. But, he's become a copyright and patent pest around the globe. We've had multiple stories about attempts to patent AI-generated inventions in different countries -- including the US, Australia, the EU and even China. The case in China didn't involve Thaler (as far as we know), but the US, EU, and Australia cases all did (so far, only Australia has been open to allowing a patent for AI).

But Thaler is not content to just mess up patent law, he's pushing for AI copyrights as well. And for years, he's been trying to get the Copyright Office go give his AI the right to claim copyright. As laid out in a comprehensive post over at IPKat, the Copyright Office has refused him many times over, with yet another rejection coming on Valentine's Day.

The Review Board was, once again, unimpressed. It held that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

The phrase ‘original works of authorship’ under §102(a) of the Act sets limits to what can be protected by copyright. As early as in Sarony (a seminal case concerning copyright protection of photographs), the US Supreme Court referred to authors as human.

This approach was reiterated in other Supreme Court’s precedents like Mazer and Goldstein, and has been also consistently adopted by lower courts.

While no case has been yet decided on the specific issue of AI-creativity, guidance from the line of cases above indicates that works entirely created by machines do not access copyright protection. Such a conclusion is also consistent with the majority of responses that the USPTO received in its consultation on Artificial Intelligence and Intellectual Property Policy.

The Review also rejected Thaler’s argument that AI can be an author under copyright law because the work made for hire doctrine allows for “non-human, artificial persons such as companies” to be authors. First, held the Board, a machine cannot enter into any binding legal contract. Secondly, the doctrine is about ownership, not existence of a valid copyright.

Somehow, I doubt that Thaler is going to stop trying, but one hopes that he gets the message. Also, it would be nice for everyone to recognize that having more public domain is a good thing and not a problem...

Filed Under: ai, copyright, dabus, stephen thaler, us copyright office

US Judge Gets It Right: AI Doesn't Get Patents

from the HAL-says-this-is-correct dept

A month ago, we wrote about a perplexing (and dangerous) decision down in Australia ruling that an AI can be listed as the inventor of a patent. As we had explained, there was a concerted effort by a small group patent lawyers and this one dude, Stephen Thaler, to seek out patents for "inventions" that an AI created by Thaler called Dabus ("device for the autonomous bootstrapping of unified sentience"). As we explained in that and earlier posts, the entire point of the patent system is to provide incentives to humans to invent. An AI does not need such incentives. As we've highlighted in the past, the USPTO and the EU patent office have both rejected AI-generated patents. Australia's patent office had done the same, but a judge there rejected that and said an AI could be listed as an inventor.

All of these situations involve Thaler/DABUS, as did a new ruling in the US which... thankfully has rejected the idea that an AI deserves patents after Thaler filed a lawsuit because of the USPTO rejection. I think there's a separate issue here: which is what standing does Thaler have in the first place? If the argument is that "DABUS" is the inventor, it seems that... um... only DABUS should have the necessary standing to challenge the rejection of its patent application. The fact that Thaler thinks he has standing more or less shows how ridiculous the entire claim is in the first place.

After going through the background of the case, and discussing what level of deference the USPTO deserves, Judge Leonie Brinkema gets straight to the actual point, which is pretty simple: AI doesn't get a patent.

Even if no deference were due, the USPTO's conclusion is correct under the law. The question of whether the Patent Act requires that an "inventor" be a human is a question of statutory construction. Accordingly, the plain language of the statute controls.... As the Supreme Court has held: "The preeminent canon of statutory interpretation requires us to 'presume that [the] legislature says in a statute what it means and means in a statute what it says there.' Thus, our inquiry begins with the statutory text, and ends there as well if the text is unambiguous."...

Using the legislative authority provided by the Constitution's Patent Clause... Congress codified the Patent Act in 1952... and has amended the Patent Act a number of times in the ensuing sixty years. In 2011, Congress promulgated the America Invents Act, which, as relevant here, formally amended the Patent Act to provide an explicit statutory definition for the term "inventor" to mean "the individual, or, if a joint invention, the individuals who invented or discovered the subject matter of the invention."... The America Invents Act also added that "joint inventor" means "any one of the individuals who invented or discovered the subject matter of a joint invention."... Additionally, Congress has required that "[a]n application for patent shall be made, or authorized to be made, by the inventor . . . in writing to the Director."... "[E]ach individual who is the inventor or a joint inventor of a claimed invention in an application for patent shall execute an oath or declaration in connection with the application" which "shall contain statements that--... such individual believes himself or herself to be the original inventor or joint inventor of [the] claimed invention."

See where this is going?

As the statutory language highlights above, both of the definitions provided by Congress for the terms "inventor" and "joint inventor" within the Patent Act reference an "individual" or "individuals."... Congress used the same term--"individual"--in other significant provisions of the Patnet Act which reference an "inventor," including requiring that "each individual who is the inventor or a joint inventor" execute an oath or declaration...

The court then notes that in analyzing other laws, courts have long said that "individual" means human. And it also highlights that the language in the Patent Act makes it clear that it was intended to apply to humans -- humans who can make a declaration about their own beliefs.

Congress's use of the term "individual" in the Patent Act strengthens the conclusion that an "inventor" must be a natural person. Congress provided that in executing the oath or declaration accompanying a patent application, the inventor must include a statement "such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in the application."... By using personal pronouns such as "himself or herself" and the verb "believes" in adjacent terms modifying "individual," Congress was clearly reference a natural person.

Then there's a fun bit of judicial eye-rolling, stating: "having neither facts nor law to support his argument," the judge notes that Thaler's argument is basically "but this is good for innovation." But that's not going to fly (leaving aside the fact that allowing AI to get patents would be objectively terrible for innovation, it's also not how any of this works):

Plaintiff provides no support for his argument that these policy considerations should override the plain meaning of a statutory term.

It gets even worse for Thaler's arguments. He argued that the PTO hadn't properly considered the policy ramifications of not allowing AI to get patents, but as the judge notes, that's clearly not true. It had. And it rejected the dumb idea.

Specifically, the USPTO points to a conference on artificial intelligence policy it held in January 2019, and to requests for public comment "on a whole host of issues related to the intersection of intellectual property policy and artificial intelligence" it issued in August and October 2019. In October 2020, the USPTO issued a comprehensive report on those comments.

And... what did that report say?

Many commentators disagreed with plaintiff's view that artificial intelligence machines should be recognized as inventors...

Given how active Thaler and his lawyer friends have been around the globe, I imagine this is hardly the end of these campaigns. I imagine this ruling will be appealed, and how long will it be until some sucker of a Senator or Member of Congress, convinced by Thaler's nonsense, will introduce a bill to amend the Patent Act to enable AI patents?

Filed Under: ai, artificial intelligence, dabus, patents, stephen thaler, uspto