Copyright Protection: The Rise of Robo-Rights!
There’s a growing debate among copyright lawyers about whether the producer of graphical AI technologies, such as MidJourney and Dall-E, should be granted copyright protection. The rule of the Copyright Office, so far at least, is that they should not. Maybe, the Office suggests, if the artist demonstrates sufficiently creative prompts. But so far, the Copyright Office has rejected copyright in every case presented to it.
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| AI Artists Demand Copyright Protection: The Rise of Robo-Rights! |
This conclusion is not just wrong. It is a strategic mistake. There is no reason under existing law why the user of a machine that produces creative work shouldn’t be granted a copyright. And the chance to craft a regime that could efficiently secure copyright to the users of AI is an opportunity for copyright generally that we should not miss.
In a world where humans and AI collaborate to create art, we must acknowledge the role of the human artist operating the machine. If I snap a photograph of a landscape, a machine is helping me create no doubt. Yet equally without doubt, I would have a copyright for my creativity. My picture is an independent creation. Nothing in the law would require that I demonstrate significant effort or creativity before I get the copyright. My machine-aided creativity would be protected, absolutely.
Using Dall-E should not change the matter. Yes, the creativity that is produced when I prompt the system is produced largely by the AI — in the sense that it would be difficult to produce it without the AI. But how easily could I take a landscape and render it into a photo? Effort is not the measure for copyright.
The Copyright Office suggests that maybe a sufficiently complicated set of prompts might qualify for copyright. But this is exactly the wrong solution. Complexity in copyright abounds and has led some of us to call fair use the right to hire a lawyer. (Though the Supreme Court’s recent elimination of fair use for commercial remix creativity may make this very simple! Ugh.) The Copyright Office’s rule would make copyright itself the right to hire a lawyer. What we don’t need in copyright are more lawyers. What we do need is a simple regime that creators can rely upon to protect their creativity.
Some think that denying copyright protection to AI-generated work would benefit human-generated creativity. That’s a mistake. At the founding of our Republic, foreign authors had no copyright protection. Only American authors did. That seemed pro-American. But as American authors quickly realized, the legal discrimination against foreign creators actually harmed Americans. British books were cheaper than American because no copyright had to be respected. Very quickly, American authors realized they were in fact harmed by this protection legislation and began to lobby for copyright protection for all.
No doubt, the Copyright Office rightly fears a deluge of AI-generated creative work claiming copyright protection. It likewise fears the inevitable trolls who would use this cheap creative technique to threaten legitimate creators.
Yet those concerns would be met if Congress were to use this opportunity to reintroduce formalities (albeit modern formalities and for domestic works only) into the copyright system: In exchange for AI copyright protection, Congress could require that the AI technologies register the work in digital registries, tied to data that established provenance and ownership. These registries need not be the government’s, though the government should set standards for an approved copyright registry. If done right, AI creativity could engender the return to a system that made it easy to identify the owners of copyrighted work, and therefore easy to clear rights when that work is to be reused.
The Creative Commons, a non-profit that empowers creators to license their work freely. Many criticized that free licensing system because of the competition it creates for traditionally licensed work. Why is that competition ok, while the competition from AI is not?
The key is autonomy: Artists deserve the recognition and protection of their creative works, regardless of whether they were created with the assistance of AI. However, they should also have the freedom to choose how their work is licensed and shared. This is where organizations like Creative Commons play a vital role. Creative Commons empowers creators to freely license their work, allowing them to dictate the terms of its use and encourage collaboration and innovation.
But the choice of licensing should ultimately belong to the creators themselves, not the Copyright Office. In a very short time, a vast swath of digital creativity will be generated by AIs, triggered by humans. These humans deserve copyright protection for their involvement in the creative process. However, it is equally important for the copyright system itself to evolve and enter the 21st century, embracing technologies that simplify the identification of ownership.
AI creativity presents us with an opportunity to build digital registries that streamline the copyright process. Instead of being biased against machines, we should embrace this chance to create a more efficient system for identifying the owners of copyrighted work. By implementing modern formalities, such as requiring AI technologies to register their work in digital registries tied to provenance and ownership data, we can strike a balance between protecting the rights of creators and addressing the concerns of the Copyright Office.
Of course, there will always be concerns about the potential misuse of AI-generated works and the rise of opportunistic trolls. However, by establishing robust registration requirements and standards for approved copyright registries, we can mitigate these concerns and ensure that genuine creators are protected while discouraging malicious actors.
In the end, it is not a matter of AI versus human-generated creativity. It is about recognizing and safeguarding the contributions of both. Artists, whether they create with the aid of AI or through traditional means, deserve copyright protection. By embracing the potential of AI and adapting our copyright system accordingly, we can create a more inclusive and effective framework that benefits creators, fosters innovation, and promotes the continued growth of human-AI collaboration in the world of art and creativity.