With decision of February 14th 2022, the Copyright Office of the United States rejected definitely the request to protect by copyright the work of art created by an artificial intelligence.
The work under exam, called “A Recent Entrance to Paradise”, is a bidimensional image created in a completely automatized way by a machine called “Creativity Machine”, designed by dr. Stephen Thaler. In particular, the work is the representation of the afterlife elaborated, without any human intervention, through a simulation of a pre-death experience made possible by the algorithm written by the American scientist.
In 2018, dr. Thaler filed an application for the registration of the work, indicating his Creative Machine as the author of the work and himself as the applicant, as owner of the machine. However, the U.S Copyright Office (U.S.C.O) had rejected the request, considering that the work could not benefit from the protection recognized by the US copyright legislation precisely because it lacked the human creative contribution.
Following the rejection, the American scientist presented an appeal to the Review Board, asking to reconsider the decision of the U.S.C.O on two grounds.
First of all, dr. Thaler argued that in the US legislation there is not an explicit ban to grant protection to works created by computers.
Second, the appellant clarified that in the US it is already possible for artificial entities to have copyright on works of art, such as in the case of companies. And as matter of fact, in case of creative works created by employees as part of their duties, the rights of economical exploitation of the work belong to the employer who, if it is a company, is the owner of the relative rights on the work.
The same happens when a legal entity acquires the copyright of the work: even in this case the owner of the rights is a non-human entity, that is the acquiring society. It is important to remember that the US copyright system is not exactly correspondent to the Italian one: in short, unlike the European system, in the United States the copyright legislation protects essentially the patrimonial copyright and the registration of the work is necessary to judicially enforce some rights.
However, even the Review Board did not approve the application for registration of the scientist, confirming the direction already expressed by the U.S.C.O.
According to the Office, a human input is necessary for the copyright on the work to be granted. This because, on the grounds of the US Copyright Act, only the “original works of authorship” that are recorded on a physical support can be protected by copyright. With respect to the definition of “original works of authorship”, the Office recalled how the Supreme Court had always interpreted this definition uniformly, by assuming that the works are created by humans and that there needs to be a connection between the human mind and the creative expression.
The Review Board did not accept the second argument either. The Office denied that companies, as non-human entities, are comparable to machines for copyright purposes because machines cannot engage contractually. In the case of the work created by the employee, in fact, the author is bound by a valid contract with the company, whereas the machine could not enter in any type of contract with respect to the copyright on the work.
Therefore, following the precedents of the Supreme Court, the Copyright Office as well stated that the human authorship of the work is an essential element in order to obtain the protection offered by the copyright legislation.
Ilaria Feriti