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The Intellectual Property StrategistFeaturesCopyrightsIntellectual PropertyLitigation

Artificial Intelligence and Copyright: Ownership and Fair Use

By Shaleen J. Patel and Sushmitha Rajeevan
June 01, 2020

Artificial Intelligence (AI) technologies use tremendous amounts of information to learn, refine and filter data that is then used to generate an output. The process, commonly referred to as "machine learning," allows certain AI to create entirely new content based upon the materials it used to learn. For example, in 2016, AI was trained to replicate and produce original paintings based upon works of renowned artist Rembrandt van Rijn. In the process of creating new content, AI may create copies of copyrighted works in memory storage as a byproduct of its overall output sequence. This article explores authorship and ownership of such AI-generated content, and to what extent, if any, can copyrights be infringed upon when AI reproduces copyrighted works for machine learning.

Ownership Under 17 U.S.C. §201

Under 17 U.S.C. §201, the ownership of a copyright in an original work is determined by identifying the author of a work. Specifically, the author of a work owns the rights associated with an original work of expression. Under the law, the author — and copyright-holder — is the individual (or individuals) who creates the work and fixes it in a tangible medium. However, what happens when the "author" of a copyrightable work is not human? More specifically, who or what is entitled to claim the ownership when an original work is created by AI?

Artificial intelligence has become a key tool for developers and artists around the world. Some have used it to create unique creations, others have used it to create derivative works, and still others have used it to circumvent potential infringement claims. However, the United States Copyright Office has yet to issue guidance on the ownership rights of these works. Section 306 of the Compendium of U.S. Copyright Office Practices provides that "[t]he U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being." As such, no software program will be recognized as an author of a copyrightable work. In particular, the Compendium proclaims that "copyright law only protects 'the fruits of intellectual labor' that 'are founded in the creative powers of the mind.'" Trade-Mark Cases, 100 U.S. 82, 94 (1879). Crucially, the Copyright Office will refuse to register a copyright claim if a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

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