If I had a dollar for every time…

…Thaler challenged the legal system to grant intellectual property rights to AI systems…

Thaler loses case for copyright
Artificial intelligence’s most persistent IP rights advocate, Dr Stephen Thaler, has again lost a battle in court, this time over copyright eligibility. In the recent Thaler v Perlmutter case, Judge Beryl Howell has ruled that since AI systems lack human authorship, their output is ineligible for copyright.

Thaler’s previous cases
Thaler had previously filed patent applications in various jurisdictions for an invention made by his AI system DABUS. The application was denied in all but South Africa, which granted him a patent, the first ever for an AI derived invention. In all the other jurisdictions Thaler applied, the rejection was based on the requirement that natural persons be the inventor.

The case for a copyright grant to AI systems
In this instance, another AI system by Thaler, called the Creativity Machine, “generated a piece of visual art of its own accord” which Thaler sought to register with the U.S. Copyright Office. In the application, Thaler listed the Creativity Machine as the author and designated the work, called “A Recent Entrance to Paradise”, as created autonomously by the machine. He then claimed the copyright of the computer-generated work as a “work-for-hire to the owner of the Creativity Machine”.

The human authorship requirement
The Copyright office denied the application on the grounds that the work lacked the human authorship essential to support a copyright claim. Thaler requested reconsideration because while the Creativity Machine’s output did lack human authorship, it “otherwise meets authorship criteria”.

Thaler’s challenge
This was rejected again by the Copyright Office. Thaler requested a second reconsideration along the same lines, which was again denied. This time Thaler challenged in Court, claiming the Copyright Office denial of registration was “arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of the Defendant’s statutory authority,” in violation of the Administrative Procedure Act (APA).

Thaler asks for review of Copyright Office action
The APA allows for judicial review of agency actions, and instructs a reviewing court to set aside such actions as are found to be arbitrary, capricious, etc. The standard basically requires agencies to engage in rational decision making to explain the basis for the actions they take. Thaler claims the Copyright Office was unreasonable in its rejection. At heart is the copyright law’s requirement for human authorship.

Court brushes aside review of CO action
The court, however, noted that Thaler spent a substantial portion of his briefing to the viability of the transfer of the work to him as the system’s owner. But those arguments concerned to whom a valid copyright should have been registered. The Copyright Office, on the other hand, held that a valid copyright never existed, so transference was irrelevant. On this question, the Copyright office did not act arbitrarily, capriciously, etc. since copyright law only protects works of human creation.

Court reaffirms tradition of human authorship
The court then covered the malleability of copyright law, noting the examples of photography, where machines (cameras) are used to generate copyrightable works, but those machines are used with the guiding hand of humans.
The principle of human authorship is derived from the text of the Copyright Act, which provides copyright protection to “original works of authorship”. Thaler pointed out that the critical word author is not defined in the text, but the court reasoned that an author, in its relevant sense, means “one that is the source of some form of intellectual or creative work” must be human. This is based on centuries of settled understanding.

Machines aren’t incentivized by IP protection
The Constitution enabled intellectual property protections to “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. The Federalist 43 points out that recognizing property rights would incentivize individuals to create and invent. Non-human actors need no incentivization with the promise of exclusive rights under U.S. law, and so copyright was not designed for them.

The Future of AI and authorship
The court did note that the future of AI will undoubtedly challenge the system on questions of how much human input is necessary to qualify users of AI systems as an author. There are currently requests for commissions to assess these questions. But the judge said this “current case was not nearly so complex. The plaintiff claimed rights to the work purely as the owner of the machine. He was clear however that he played no part in the creation of the work.” The work therefore is not copyrightable.