Independent Creation in a World of AI

Abstract

Scholars have long debated whether the outputs of AI systems should be subject to copyright. On the one hand, the automated nature of many AI systems may make copyright unnecessary as an incentive for the creation of withholding copyright protections from them. On the other hand, those outputs often exhibit sufficient creativity to merit copyright protection, and without copyright, parties that use AI systems to create such outputs may lack the necessary incentives to do so. In this Essay, prepared as part of the Florida International University t, I argue that copyright ependent creation defense, as well as the widespread availability of AI systems for helping authors in their creative efforts, helps address some of the concerns embedded in these debates. Historically, the independent creation defense has rarely applied, simply because independent creation of similar expression is highly unusual. But as this Essay explores, AI increases the likelihood of multiple parties creating similar expression independently, meaning that the defense can help defuse worries that applying copyright to AI outputs will result in a copyright quagmire. Furthermore, the availability of AI systems for assisting authors in their creative efforts means that authors have tools for more readily creating unique works that avoid many of the remaining copyright landmines. Other copyright issues linger, however, and the last part of this Essay examines some of these concerns in brief. In particular, parties may wish to use specific AI outputs in their own creative efforts, and neither the independent creation defense nor the availability of AI tools for creating something unique helps defense may, however, and the Essay concludes by briefly examining how. * Professor of Law, BYU Law School. Many thanks to Stephanie Plamondon Bair and participants at the FIU Law Review Symposium for helpful comments on previous versions of this Article. [Vol. 14:201 copyright laws. 37 While the fixation requirement can cause the authors of certain types of works headaches, 38 the originality requirement is typically viewed as the more important of the two copyrightability standards. 39 Indeed, ock principle of copyright. . 40 What, exactly, does originality entail? According to the Supreme Court, 41 The creativity required for some work to qualify for copyright protection thus need not be much; even a mote will do. 42 Combined, these two requirements of originality thus mean that two or more parties can come up with the same or similar creative expression, so long as they do so independent of one another. 43 independent creation requirement simultaneously imposes a copyright limitation, commonly referred to as the independent creation defense to copyright infringement. 44 If successfully wielded, the defense provides multiple parties copyright protections in their respective creations, even if identical or similar, so long as each of the parties did not copy their creative expression from anyone else. 45 Consequently, if someone produced the Harry Potter se...

The AI Ghostwriter Effect: Users Do Not Perceive Ownership of AI-Generated Text But Self-Declare as Authors

“…For example, the International Committee of Medical Journal Editors (ICMJE) defined that someone should be declared an author of a work if they made a significant contribution to the conception of the work or analyzing data for the work, drafted or critically revised the work, approved the version to be published, and are taking responsibility for all aspects of the work 7 . Other organizations, such as the ACM 8 , define similar criteria.…”

“…Copyright and intellectual property attribution with AI is a pressing issue from a legal perspective [8,42,97]. Previously, these rights were attributed to natural persons or organizations, and there is an ongoing debate whether a computer algorithm or the developers of an algorithm can also claim them [7,59,90]. Legislation for computer-generated work also differs between countries, crediting the humans working with an algorithm, the developers of an algorithm, or arguing that no copyright can be granted [90].…”

Decoding Authorship: Is There Really no Place for an Algorithmic Author Under Copyright Law?

“…79 Bastian (1999). 80 Craig (2022) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4014811); Asay (2020). 81 Talk to Transformer is an AI language generator created by Canadian engineer Adam King using the OpenAI GPT-2 technology.…”