Can AI Invent or Author Registrable Works? Let’s Explore.

Not to sound abrupt but:

The short answer is no.

Artificial intelligence can’t invent or author registrable works. There’s a human authorship requirement. However, it’s not as straightforward as this.

The thing is, copyright and patent law is pretty old (we’re talking about 100s of years old here), so it’s liable to change. 

So, let’s look at this issue in more detail: 

The great global debate 

Let’s start by saying that quite a few countries are extremely clear about using AI technology. 

For example, in the States, AI art can’t be copyrighted. However, globally there’s a lot of debate surrounding the topic (which I’ll cover in more detail soon). 

In Australia, a court considered how the word inventor might not necessarily pertain to a human element, but rather that it’s more of an “agent-noun, akin to “dishwasher.”

You might be thinking: “Okay, but what about the unique content produced by the ever-popular ChatGPT or DALL-E?”

This is a bit of a gray area.

Canada is still deliberating over the problem but may also lean towards not accepting AI-generated works for copyright. But the country also faces the same issue: outdated policies that aren’t suited to technology today. 

And even though the EU is known for its progressive policies (European Climate Law, anyone?), the European Patent Office (EPO) nevertheless maintained that an inventor has to be a “natural person.” 

A similar sentiment was held in the German Patent and Trademark Office.  

Pertinent judgments

So now that we’ve explored global attitudes relating to AI intellectual property let’s hone in on two judgments about AI copyright and patent registration:

1. The case of DABUS v. Thaler

This case explored whether Dr. Thaler’s patent application was valid because he created DABUS, the AI program that created the inventions. 

It was ultimately decided that DABUS can’t be the inventor as it’s not a person, as per sections 7 and 13 of the UK Patents Act of 1997. 

Each successive appeal was denied on similar grounds. However, the Court of Appeal was divided on the correct approach for processing patent applications where the owner of an AI machine asserts themself as the owner of the inventing AI.

2. The “Zarya of the Dawn” case

What can be said about AI art copyright? While not dealt with in its entirety, the “Zarya of the Dawn” case did touch on this issue.

What was the verdict?

The United States Copyright Office granted Kris Kashtanova limited copyright protection for her AI-assisted graphic novel. 

Ultimately, the decision was to provide protection merely for the “arrangement of the images” and the text, but not for the images themself, as they were AI-produced.

Kris used Midjourney, a generative AI, which produced the images in the story. And although initially, she received complete protection, a secondary review considered her use of AI.

Ultimately the software was contrasted to that of employing a visual artist whose work could not be claimed as her own.

And so, the question lingers, can AI write a novel? If so, what elements will the “author” be able to claim?

Let’s just say the future regarding human authorship vs. AI technology will be interesting. 

The future of intellectual property law: time will tell

In its present state, it’s hard to say what the future looks like for AI. Although it may appear bleak, the fact of the matter is that a lot of legislative reform is needed. Plenty is going to change. Will it just be a matter of works requiring sufficient human authorship? With time, we’ll know.