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Can a machine or Artificial Intelligence (AI) claim copyright in the work created by it?

Can a machine or Artificial Intelligence (AI) claim copyright in the work created by it? This question has, off late, garnered a lot of curiosity amongst IP enthusiasts. The Copyright Review Board of the United States Copyright Office (“CRB”) recently addressed this question while adjudicating a second request for reconsideration of refusal to register a 2D artwork created by the “Creativity Machine”. The copyright claim was initially refused by the Registration Program on the ground that a work autonomously created by a computer algorithm running on a machine lacks the human authorship necessary to support a copyright claim.

The CRB referred to several judicial precedents, statutes and the compendium on the Copyright Office practice and observed that, in order to claim copyright, a work must be created by a human being. The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, plants, or animals are not copyrightable. It emphasized that the US Supreme Court continued to articulate the nexus between the human mind and creative expression as a prerequisite for copyright protection.

The claimant, Steven Thaler, argued in support of AI being an author under copyright law, because the work made for hire doctrine allowed for “non-human, artificial persons such as companies” to be authors. The CRB, however, observed that, under this doctrine, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. Since the Creativity Machine cannot enter into binding legal contracts, it fails to meet this requirement. Consequently, the CRB affirmed the Registration Program’s denial of copyright registration to a work created by a machine.

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