Coding Creativity: Copyright and the Artificially Intelligent Author

Abstract

For more than a quarter century, interest among copyright scholars in the question of AI authorship has waxed and waned as the popular conversation about AI has oscillated between exaggerated predictions for its future and premature pronouncements of its death. For policymakers, the issue has sat on the horizon, always within view but never actually pressing. To recognize this fact, however, is not to say that we can or should ignore the challenge that AI authorship presents to copyright law's underlying assumptions about creativity. On the contrary, the relatively slow development of AI offers a reprieve from the reactive, crisis-driven model of policymaking that has dominated copyright law in the digital era.By engaging and extending insights from two relatively discrete lines of existing scholarship - the postmodern critique of romantic authorship and the more pragmatic literature on copyright in works produced with the aid of computers - this Article seeks to answer the vexing copyright questions that arise from the artificially intelligent production of cultural works. It does so by developing the argument that all creativity is inherently algorithmic and that works produced autonomously by computers are therefore less heterogeneous to both their human counterparts and the current structure of copyright law than appearances may at first suggest.Annemarie BridyProfessor<http://www.uidaho.edu/law/faculty/annemariebridy>|University of Idaho College of Law|PO Box 83720-0051|Boise, ID 83720|Ph. 208.364.4583Affiliate Scholar<https://cyberlaw.stanford.edu/about/people/annemarie-bridy>|Stanford Center for Internet and SocietyAffiliate Fellow<http://isp.yale.edu/people-directory?type=19>|Yale Information Society ProjectSSRN<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=630766>|HeinOnline<http://heinonline.org/HOL/AuthorProfile?collection=journals&search_name=Bridy,%20Annemarie&base=js>|LinkedIn<https://www.linkedin.com/in/annemariebridy>|Twitter<https://twitter.com/AnnemarieBridy>

If Asimo Thinks, Does Roomba Feel? The Legal Implications of Attributing Agency to Technology

“…A rich and rapidly expanding literature at the intersection of robotics and law identifies and evaluates issues like these among many others (see, e.g., Bridy, 2012;Kaminski, 2015;Calo, 2015;Calo, 2016). Some of the issues are immediate-they concern things that technology already does.…”

“…Some of the issues are immediate-they concern things that technology already does. For instance, machine-generated art has already been displayed in art museums, though we still have not untangled the intellectual property issues related to such displays (for discussion, see Bridy, 2012). Others issues remain in the future: Should a sufficiently sophisticated robot be treated as a legal person (Solum, 1992;Boyle, 2011) and afforded rights like free speech (see Wu, 2013)?…”

“…As a result of the increasing availability of intelligent technologies, means of artistic production are changing. "[P]eople are enabling computers to produce art and other creative works in new ways, virtually all by themselves" (Bridy, 2012). For instance, artist Harold Cohen spent decades developing a computer program called AARON, which creates original artwork that has been displayed in the Tate Gallery in London, among other places.…”

“…Given this low standard, there is a strong argument that existing technologies like AARON and the Cybernetic Poet create "original works of authorship" entitled to copyright protection (Bridy, 2012). But who, if anyone, gets the copyright remains open for debate (for discussion, see Bridy, 2012;Clifford, 1997;Samuelson, 1985). The most obvious answer seems to be the human inventor (or programmer) of the machine (or program) that generates the art.…”

Deep Creations: Intellectual Property and the Automata

“…2 Several of these issues have already been the subject of-mostly doctrinal-debates, at the intersection between the fields of computational creativity and intellectual property law (see, e.g., Bridy, 2012;Buccafusco et al, 2014, and references therein). However, the hybrid nature of these new constructions (hybrid in the sense that they are rooted in human data but grow and evolve automatically through the interpretative filter of a learnt algorithmic model) highlights specific questions that require a detailed analysis of the modalities involved in the underlying generative processes.…”