When the framers of the Constitution granted Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” and established the basis of patent and copyright law in the United States, there was an implicit assumption that aforementioned authors and inventors would be human. It was, to state the obvious, 1879. This assumption remained largely unchallenged for over two centuries— only humans have ever been able to obtain patent and copyright protections. However, rapid developments in artificial intelligence (AI) technology are forcing the U.S. Patent and Trademark Office and the U.S. Copyright Office to confront the issue of AI receiving intellectual property rights.
AI and Copyright
Currently, U.S. copyright law requires human authorship for a work to be granted copyright protection. This position has been challenged and affirmed in Steven Thaler’s attempt to register for copyright an AI-generated artwork. The 2D artwork, titled “A Recent Entrance to Paradise” and pictured below, “was autonomously created by a computer algorithm running on a machine.” Thaler filed for copyright in 2018, and in 2019, the Copyright Office refused on the grounds that the work “lacked human authorship.” The Office affirmed this position in 2020 on the same grounds. In 2022, after a second request for reconsideration, the Office again refused to recognize copyright in the work, stating that “human authorship [is] a prerequisite for copyright protection.” The Office pointed to Supreme Court decisions, lower court decisions, and policy reasons for its position.
However, this issue is not as settled as the Copyright Office makes it seem. On January 10, 2023, Thaler sued the Copyright Office, arguing again that AI-generated works are copyrightable, keeping the debate over the copyright eligibility of “A Recent Entrance to Paradise” alive. Furthermore, on February 21, 2023, the Copyright Office granted limited copyright protection over Zarya of the Dawn, a comic book with AI-generated images. Specifically, the human author of the comic, Kristina Kashtanova, was granted copyright over the comic’s text “as well as the selection, coordination, and arrangement” of its visual elements. However, the images themselves were not objects of human authorship. Although the Office acknowledged that Kashtanova had dedicated time and effort into prompting the AI to create images that matched her text, it noted that such effort was not a basis for copyright protection. As such, the copyright registration will “explicitly exclude” the AI-generated work. Although the human authorship standard remains in place, Zarya of the Dawn opens the door to copyright protections for works that AI has played a role in creating.
AI and Patent
There have been parallel developments in the patent space. Patent law requires human inventorship. This has been affirmed as recently as August 2022, in Thaler v. Vidal. (Yes, this is the same Thaler as above, who tried to register an AI-generated artwork for protection!) Thaler attempted to register two inventions he attributed to an AI. Upon examination, the Patent and Trademark Office (PTO) found that Thaler’s applications were incomplete for lack of valid inventors. The District Court ruled that an “inventor” in the Patent Act must be a human person, and the Court of Appeals for the Federal Circuit affirmed. The Federal Circuit stated “Congress has determined that only a natural person can be an inventor, so AI cannot be.”
However, the PTO has also shown signs of being open to patents for AI-enabled inventions. On February 14, 2023, the PTO put out a request for comments on the role of AI in innovation and inventorship. They noted that inventorship issues were likely to arise as “AI plays a greater role in the innovation process,” and that “if [AI] are in fact capable of significantly contributing to the creation of an invention, the question arises whether the current state of the law provides patent protection for these inventions.” The request for comments lists several questions for the public to respond to; among them are questions about AI as a joint inventor (in Question 3) and AI inventorship (Question 9).
Rapid advancements in AI technology and implementation have made the issues of whether AI can hold intellectual property rights all the more pressing. Although both the Copyright Office and the Patent and Trademark Office continue to require human authorship and inventorship, respectively, it seems inevitable that AI-enabled works and inventions will expand the bounds of intellectual property protections.
 https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf at 2
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 Id. at 9494.