It has ben a fundamental tenet of copyright law that for a work to be subject to copyright protection it must be the result of human authorship. The bar for protection is low and varies from jurisdiction to jurisdiction. In Canada, for example, skill and judgement is required. In the United States a minimal level of creativity is required. With the rise of generative artificial intelligence (aka generative AI or GenAI) questions have emerged as to whether content generated entirely using GenAI can be protected as work under copyright legislation. A recent U.S. decision, Thaler v. Perlmutter, case No. 1:22-cv-01564,(D.D.C. 8/18/23), confirmed that content generated without human involvement cannot be a work protected under the U.S. Copyright Act.
The U.S. Copyright Office recently described generative AI or GenAI content as
“…the use of sophisticated artificial intelligence (“AI”) technologies capable of producing expressive material. These technologies “train” on vast quantities of preexisting human authored works and use inferences from that training to generate new content. Some systems operate in response to a user’s textual instruction, called a “prompt.” The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on.”[i]
Most GenAI content that has been in the news has been created using foundation models specifically intended to generate, with varying levels of autonomy, content such as complex text, images, audio, or video.[ii] A foundation model is a type of AI model that is trained on a vast quantity of data and is adaptable for use on a wide range of tasks. Large language models (LLMs) used by systems such as ChatGPT and StabilityAI are types of foundation models. These models go beyond reproducing or translating natural language and also have the power to write software, generate text, stories through films and virtual reality, and more.[iii]
There has been significant litigation as to whether content generated using GenAI infringes copyright. There have also been significant initiatives to regulate AI including generative AI.[iv]
While the issue of the legal protection of GenAI content under copyright is relatively new, the applicable legal principle that for a work to be protected by copyright it must be created by a human author is long standing.
Computer assisted (or computer aided) works, can, of course, be protected by copyright.[v] However, the authorities around the world have consistently drawn a distinction between computer assisted and computer generated works. I described the difference in my book Sookman Computer Internet Law as follows:
“The determination as to whether a person is an author of a work created using a computer program will be a factual one. If the person controlling the program can be seen as directing or fashioning the material form of the work, it will likely be protected as a computer‑assisted work. But, if the person does not contribute sufficient independent intellectual effort to satisfy the Act’s requirement for originality, the individual using the program would likely not be considered its author.”
This distinction is supported by caselaw from around the world including caselaw from Canada, the United States, Australia, India and Singapore, to name a few.[vi] The United States Copyright office has also issued guidance on the protection of GenAI content holding that, at least for content that is produced without sufficient human involvement, such content is ineligible for copyright protection.[vii] These decisions are also consistent with decisions from around the world that have similarly held that GenAI inventions are also ineligible for protection under patent laws because inventors must be human beings.[viii]
The issue in the Thaler case arose from the refusal of the U.S. Copyright office to register content resembling a work of art called “A Recent Entrance to Paradise“ applied for by Steven Thaler. The image is shown below.
The author of the content was identified as the “Creativity Machine,” with Thaler listed as the claimant alongside a transfer statement: “ownership of the machine.” In his application, Thaler left a note for the Office stating that the Work “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer‑generated work as a work‑for‑hire to the owner of the Creativity Machine.”
The U.S Copyright Office refused to register the image on the basis that courts interpreting the Copyright Act, including the U.S. Supreme Court, have uniformly limited copyright protection to creations of human authors.
Mr Thaler sought judicial review of the decision to a United States District Court which affirmed the decision on a summary judgement motion.
2. The Decision that GenAI content is not protectable under copyright law
The Court started its analysis by observing “that throughout its long history, copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper.” That is because copyright is designed to adapt with the times.
However, as confirmed by the Court, “[u]nderlying that adaptability, however, has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.” As well, “[c]opyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright. “ As further explained by the Court:
That principle follows from the plain text of the Copyright Act. The current incarnation of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”
To be sure, as plaintiff points out, the critical word “author” is not defined in the Copyright Act. See Pl.’s Mem. at 24. “Author,” in its relevant sense, means “one that is the source of some form of intellectual or creative work… By its plain text, the 1976 Act thus requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is yes…
The 1976 Act’s “authorship” requirement as presumptively being human rests on centuries of settled understanding. The Constitution enables the enactment of copyright and patent law by granting Congress the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries.” U.S. Const. art. 1, cl. 8. As James Madison explained, “[t]he utility of this power will scarcely be questioned,” for “[t]he public good fully coincides in both cases [of copyright and patent] with the claims of individuals.” THE FEDERALIST NO. 43 (James Madison). At the founding, both copyright and patent were conceived of as forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent. The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.
The understanding that “authorship” is synonymous with human creation has persisted even as the copyright law has otherwise evolved. The immediate precursor to the modern copyright law—the Copyright Act of 1909—explicitly provided that only a “person” could “secure copyright for his work” under the Act. Act of Mar. 4, 1909, ch. 320, §§ 9, 10, 35 Stat. 1075, 1077. Copyright under the 1909 Act was thus unambiguously limited to the works of human creators. There is absolutely no indication that Congress intended to effect any change to this longstanding requirement with the modern incarnation of the copyright law. To the contrary, the relevant congressional report indicates that in enacting the 1976 Act, Congress intended to incorporate the “original work of authorship” standard “without change” from the previous 1909 Act. See H.R. REP. NO. 94-1476, at 51 (1976).
The Court went on to refer to numerous decisions in which the human authorship requirement has been consistently recognized by the U.S. Supreme Court and other courts when called upon to interpret the copyright law. The Court then observed that
Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more…
The Court held that this was not such a case as Mr Thaler had admitted before the Copyright Office that the image for which registration was sought was generated autonomously by a computer system. Therefore, the decision to refuse the copyright registration was justified.
A copy of the decision can be viewed here.
This article was first posted on www.barrysookman.com.
[ii] E.U., Proposal for a regulation of the European Parliament and of the Council on harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union Legislative Acts, online: EU AI Act (draft Compromise Amendments) May 9, 2023
[iv] These developments are summarized in my blog post Generative AI: my keynote speech on the challenges and legal issues at ITechLaw, https://www.barrysookman.com/2023/05/28/generative-ai-my-keynote-speech-on-the-challenges-and-legal-issues-at-itechlaw/.
[v] See, for example, Midway Mfg. Co. v. Artic International Inc., 547 F.Supp. 999 (N.D. Ill. 1982), affirmed 704 F.2d 1009 (7th Cir. 1983); Oakcraft Homes Inc. v. Ecklund,  O.J. No. 3215 (Ont. S.C.J.) ; Geophysical Service Incorporated v. Encana Corporation. 2016 ABQB 230, affirmed 2017 ABCA 125; Express Newspapers Plc v. Liverpool Daily Post & Echo Plc,  3 All E.R. 680 (Ch.D.).
[vi] See, Harmony Consulting Ltd. v. G.A. Foss Transport Ltd., 2012 FCA 226; Telstra Corporation Limited v. Phone Directories Company Pty Ltd.,  FCAFC 149 (15 December 2010); Acohs Pty Ltd v. Ucorp Pty Ltd.,  FCA 577 (10 June 2010); IceTV Pty Ltd. v. Nine Network Australia Pty Ltd.,  HCA 14; Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd  SGCA 37; Camlin Pvt. Ltd. vs National Pencil Industries on 7 November, 1985, AIR 1986 Delhi 444; Ross, Brobins & Oehmke PC v. Lexis/Nexis. 73 U.S.P.Q. 2d 2005; Southco, Inc. v. Cambridge Corp., 390 F. 3d 276 (3rd Cir. 2004); Reareden LLC v. The Walt Disney Company, 293 F.Supp. 963 (N.D. Cal. 2018).
[vii] See, U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, online: U.S. Copyright Office Guidance; also, Zarya of the Dawn (Registration # VAu001480196).
[viii] See, Thaler v Vidal 43 F.4th 1207 (2022); J 0008/20 (Designation of inventor/DABUS) of 21.12.2021; Thaler v Comptroller General of Patents Trade Marks And Designs  EWCA Civ 1374 (21 September 2021); Commissioner of Patents v Thaler ‑  FCAFC 62
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