Plan supercharges the creative possibilities in both copyright and AI and revitalizes copyright law

In analyzing this policy and legal question, there is value in taking a comparative law approach in order to assess how other nations have addressed this important question for the future and present state of copyright law. This article proposes that the United States rule should follow the UK approach. Under the United Kingdom’s Copyright, Designs and Patents Act 1988 (the “CDPA”), there is protection for a category of computer-generated works, that is, those generated by a computer “in circumstances such that there is no human author of the work.”89Section 9(3) of the CDPA provides that the author of a computer-generated literary, dramatic, musical or artistic work, “shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.”90 Although some countries follow the current U.S. approach of declining to protect AI-generated content,91 a number of jurisdictions are finding ways to offer such works copyright protection, including Japan, Ireland, New Zealand, and South Africa.92 It is clear that many common law countries, with more flexible legal frameworks, have anticipated the coming tide of AI growth. It is unclear how the EU and China will eventually resolve this question.93 A rule similar to that in the UK should be adopted in the near future for AI-generated works. This law would provide incentives for the creation and development of AI technology and for the implementation and use of that technology to generate new creative works. This interpretation would make copyright protection for computer-generated works subject to the same requirements that other works must meet. Thus, the work must meet the minimum standard of originality recognized in Feist. It must be independently created by the AI technology (and thus not copied from another source). It must not consist of ineligible subject matter (such as ideas, facts, words, short phrases, scènes à faire, and the like). Copyright protection for AI-generated works would subsist for the same term currently given to works made for hire, which is 95 years from the date of publication or 120 years from the date of creation, whichever comes first. The long-term question—what happens if and more likely when AI technology equals or exceeds human creativity—is no longer merely hypothetical, though it remains unpredictable and futuristic. But it is certainly not beyond the realm of possibility that this situation will arise, and that it will occur more quickly than knowledgeable observers anticipated even a few years ago. If and when it does, one legal solution would be to have the treatment of AI-generated works essentially track the treatment of AI entities themselves. In other words, if they are given legal recognition and status similar to that of human beings, then by right, they would be entitled to the protections of copyright law. In the United States, this result could be accomplished by legislation (likely part of the overall legal status law), by court decisions interpreting the copyright laws, or by an interpretation of the Equal Protection Clause of the Fifth and Fourteenth Amendments. Conclusion In conclusion, the treatment of AI-generated works will continue to vex the courts, the Copyright Office, and Congress. Meanwhile, developments in AI technology will continue to expand the nature and types of works that can be created using AI. Society has already reached the point at which the Turing test—whether AI works are indistinguishable from human creations—has been satisfied. AI-generated content is clearly already as good as—and sometimes better than—many human-produced works. It is, therefore, appropriate for either the courts to interpret the current Copyright Act to encompass AI-generated works or for Congress to enact legislation specifically recognizing their protectability. AI is developing and progressing at such a rapid rate that copyright law will need to adapt and catch up to the reality that creativity is no longer only a human sphere of activity.