Established rules need to be changed
According to American law, a work of art created by artificial intelligence without human intervention cannot be protected by copyright. When the framers of the U.S. Constitution granted Congress the power in 1879 to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Writings and Discoveries” and thereby laid down the foundations of patent and copyright law in the United States, they rightly assumed that the aforementioned authors and inventors would be human. And this assumption remained virtually unquestioned for more than two centuries – only people could ever receive patent and copyright protection.
However, the rapid development of artificial intelligence (AI) technologies is forcing the U.S. Patent and Trademark Office and the U.S. Copyright Office to address the issue of granting AI intellectual property rights.
Currently, US copyright law requires human authorship for a work to be protected by copyright. This position was challenged and confirmed in an attempt by computer scientist Stephen Thaler to register a copyright for a work of art created by artificial intelligence.
The two-dimensional work, titled “Recent Entry into Paradise” (a pixelated pastoral scene depicting railroad tracks running under a mossy bridge), was autonomously created by a computer algorithm running on a machine. Thaler applied for copyright in 2018, and in 2019, the Copyright Office rejected his application on the grounds that the work “does not have human authorship.” The Office reaffirmed this position in 2020 on the same grounds. In 2022, after 
the second request for reconsideration, the Office again refused to recognize the copyright in the work, stating that “human authorship is a necessary condition for copyright protection”. The Office substantiated its position with the decisions of the Supreme Court, lower court decisions and political considerations.
However, the issue is not as settled as the Copyright Office makes it seem. On January 10, 2023, Thaler sued the Copyright Office, again arguing that works created by artificial intelligence are copyrightable, which continued the debate over whether “Recent Entry into Paradise” is copyrightable. However, US District Court Judge Beryl Howell also upheld the decision of the Copyright Office and noted that human authorship is an integral part of copyright.
Stephen Thaler defends the rights of artificial intelligence
Stephen Thaler made headlines in 2022 when courts around the world began ruling on whether his artificial intelligence system could be named as an inventor in a patent.
As one of the pioneers of the AI industry, Thaler has had a fascinating and storied career. He first started working with neural networks back in the 1970s to create alternative versions of the “have a nice day” emoticon. In 1995, Thaler founded Imagination Engines Incorporated, a pioneering artificial intelligence company that claims to have transferred the thought process to a neural network system.
For several years now, artificial intelligence developer and researcher Stephen Thaler has been trying to prove that his AI system DABUS (an acronym for Device for the autonomous bootstrapping of unified sentience) is truly intelligent. Thaler is convinced that the art objects created by DABUS should be protected by copyright. The inventor files lawsuits in courts around the world, earning him the nickname “serial plaintiff.” The latest case was the rejection by a US federal judge that DABUS cannot claim copyright to a painting created in 2012.
Previously, judges have rejected similar claims in the European Union, the United States, Australia, and New Zealand. In 2021, Stephen Thaler managed to obtain a patent in South Africa, but according to experts, the country’s patent system is a registration system, not an examination system. “As far as I understand it, I could get a patent for a wheel in South Africa,” commented Matthew Sag, a professor of law and artificial intelligence at Emory University, on this episode of the legal saga.
Thaler himself claims that his cases are not about intellectual property, they are about personality. He believes that the DABUS artificial intelligence system is intelligent, and that these lawsuits are a good way to draw attention to the “new species” and its rights.
“DABUS and all this intellectual property is not about setting precedents with the law. It’s about setting precedents in terms of human recognition,” he says.
Thaler in the British court
The UK Supreme Court is currently considering Stephen Thaler’s appeal against the UK Intellectual Property Office’s (UKIPO) decision not to allow two of his patent applications to list DABUS artificial intelligence as an inventor.
In 2018, Thaler filed patent applications in several jurisdictions, including the UK, for two new inventions: a neural flame and a fractal container. In these applications, Thaler is listed as the patent owner, and his artificial intelligence machine, DABUS, is listed as the inventor. This is because he believes that DABUS has independently created new inventions.
The UK’s highest court is expected to consider whether DABUS falls within section 7(3) of the UK Patents Act 1977 for determining the inventor (“the actual inventor”) and issue guidance on how this affects who owns the patents of section 13(2), which provides that by default the inventor is the owner of a patent unless it is assigned to another entity. If it is found to fall within the definition under Section 7(3), judges will be asked to consider whether an AI robot can be considered a legal entity for the purpose of transferring ownership. If successful, this will be the first significant example of giving artificial intelligence robots a legal personality of their own.
The Supreme Court’s decision is likely to have international significance. The emergence of generative AI, capable of creating persuasive texts, interpreting cues to create works of art, and manipulating vast amounts of data to design everything from pharmaceutical molecules to architectural plans, has led to profound questions about the nature of intellectual property-and, inevitably, legal disputes. Authors, for example, have lined up to sue artificial intelligence companies for training their systems on their works without permission. But in the court cases that have made headlines around the world, Thaler is perhaps the most active plaintiff.
If we analyze all of Thaler’s lawsuits in detail, we can say that his idea of granting AI the rights of an author deserves attention, because the cooperation between humans and AI is becoming closer and closer to a creative dialogue, so our idea of authorship may have to change. Thaler’s case reveals the complexity of legal issues that the intellectual property industry will continue to face as AI develops.
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artificial intelligence / copyright / innovator / intellectual property / Stephen Thaler
