2---First mover advantage.
Lee 21 – Associate Professor of Law at the Chinese University of Hong Kong, former Associate Research Fellow in the Center for Information Technology Innovation, JSD from Stanford Law School, LLM from Harvard Law School.
Jyh-An Lee, “Computer-generated Works under the CDPA 1988,” Artificial Intelligence and Intellectual Property, 04-19-2021, https://global.oup.com/academic/product/artificial-intelligence-and-intellectual-property-9780198870944?cc=cr&lang=en&
However, this line of argument is not flawless. First, AI developers normally obtain copyright for their generative AI software. If the software meets the patentability requirements, it can be protected by patent law as well. Therefore, AI developers, incentivized by the existing IP regime, are already able to profit from their commercially successful software through licensing royalties.107 Additionally, software innovators’ competitive edge is reinforced by the first-mover advantage, which is typically significant in the software industry and provides another layer of incentive for software development.108 Therefore, if software developers can obtain additional copyright for AI-generated works, they would be over-rewarded for the same creation. This additional protection is not justified from a policy perspective.109 After all, it is the software, rather than the human author, that creates the work. Different from human authors, computer programs will not be incentivized to create more or fewer works by copyright.110 If software developers are entitled to the copyright of AI-generated works, they might own an indefinite number of subsequent copyrights by creating one single AI project, because of its continuously generative nature.111 IP protection and its consequent social costs will then become disproportionate to the incentives it provides.
Second, although computer-generated works are not protected by copyright law in most jurisdictions, the global investment in AI technology has increased dramatically in the past decade. AI startups have attracted an enormous amount of investment from private equity funds, venture capital, and other corporate investors.112 Investment in AI technologies has been rising dramatically since 2016.113 Various industries ranging from healthcare to cybersecurity have also invested heavily in AI technologies.114 AI companies in the US and China have attracted more investment than those elsewhere,115 and copyright laws in these two countries do not protect computer-generated works. Recent development in AI has revealed that copyright is not a prerequisite for AI developers to exploit the commercial value of AI-generated works. That being said, the incentive theory might not be applicable in copyright protection for AI-generated works.116