Miguel Ortego
Intellectual Property Law

Human authorship is a prerequisite to copyright protection

19 febrero 2022

The US Copyright Office («USCO») still denies copyright protection to any creation that is not “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind” (i.e. only works created by humans are registrable). In this case, as my fellow colleague professor Eleonora Rosati writes on the IPKAt the USCO refuses to to register the two-dimensional artwork «A Recent Entrance to Paradise» .

This issue started with Mr. Stephen Thaler requesting registration of an AI creation. The USCO always relies on Compendium of Practices (p. 21-22), as follows:

«[T]he 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. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

Mr. Thaler then requested a reconsideration of the decision, arguing that the human authorship requirement would be contrary to the US Constitution (taking into account the spirit and goal of the Law back then when discussed and passed by the US Congress) and be unsupported by either statute or case law. Such a request was once again unsuccessful.

The Review Board (not very clearly) held that “human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered» and went through de meaning of «original works of authorship» (§102(a) of the Act) finding possible only human authorship due the language of the law (Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 [1884], Mazer v. Stein, 347 U.S. 201 [1954] and Goldstein v. California, 412 U.S. 546 [1973]).

It must be noted that relevant scholars on this field such as Rosati herself or professor Ricketson support this decision and to their mind its reasoning appears appropriate, also in light of international law. Both find the support to this argument in the Berne Convention, the last one, in particular, states that it was clearly understood that this was also a requirement for the purposes of protection under the Convention, and inherent in the phrase «literary and artistic works’ in Article 2. The condition that a literary and artistic work possesses a sufficient (how much, however, the Convention does not say) degree of originality postulates «the need for the author to be a human being and for there to be some intellectual contribution above and beyond that of simple effort (‘sweat of the brow’) or what may be called mere ‘value in exchange’’”(Ricketson).

Notwithstanding the foregoing, neither the Berne Convention (at least from its literal language) nor any other international treaty bans or restricts admitting that entities beyond humanity. That is clear with no room for any interpretation on the contrary as national laws of member states of the Berne Convention such as UK admit works made by computers or others-case-law-has recently admitted AI as author of an invention (i.e. «DABUS» in Australia).

Anyhow, AI’s ability to create in an absolute autonomous way poses such a challenge for current intellectual property law that sticking the classic romantic author and doctrines set more than 30 years are no longer enough to find the solutions needed.

Image: IPKat

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