US Copyright, Patents, and Generative AI
There’s a lot of misinformation and misrepresentation of copyright and patent law when it comes to generative AI. In fact, the US copyright office has already flip-flopped on this issue; and the Chinese courts have come up with a completely different ruling saying that AI generated images can be copyrighted. It appears this could be a political war as much as a legal one.
A lot of the social media hyperbole is being fueled by fear and uncertainty. Not that there isn’t a real problem with generative AI taking away people’s livelihoods or possible copyright violation; but it’s worth knowing what one is talking about before heading off with pitchforks and torches.
I found this article on IPWatchdog to be informative about the actual legal arguments – but it’s important to know the jury is still out; and the US Copyright Office has already ruled exactly the opposite on this issue just a year ago. First off, what does copyright protect (compared to a patent)?
The Supreme Court laid out the difference first in Baker v. Selden, and re-emphasized it a century later in Mazer v. Stein. “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.” In this way, each type of intellectual property right exists in different types of creations, which arise in a different ways, and have different requirements for protection. “[C]opyright protects originality rather than novelty or invention,” which is the domain of patents, said the Court in Mazer.
Indeed, what the Court made clear in Feist v. Rural, is that authorial works need to be original; that is, both created independently and “creative.” Other cases, such as Bleistein v. Donaldson, spoke of original expressions as “personal reaction upon nature,” where the author contributes “something recognizably his own,” per Alfred Bell.
So the question for copyright becomes ‘Is AI creative?’. This is a tough point because it’s not clear what creativity really is. However, that philosophical or neuroscientific point is not that important when it comes to law. What is important is the previous language used to describe what is protected.
The article author indicates the emerging legal arguments seem to indicate that the kind of ‘creativity’ that is covered by copyright relates to that of human activity. Neither the courts nor the US Copyright Office have so far found AI to be creative with respect to the wording of existing copyright law.
Whether that argument is valid/sticks is a whole other story. Law is fickle and can change. It also doesn’t touch on the question of fair use on publicly displayed images and the argument that AI might be just considered as using copyrighted work to learn techniques/make but making their own reactive/derivative works which is something that art students do and the whole point of going to art school.
Either way, we’re likely see the most important legal decision in a decades with profound repercussions for future generations.
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