Are AI Generated Works Intellectual Property?

The U.S. Patent and Trademark Office (USPTO) has once again stressed that only humans can be listed as inventors on patents. And the U.S. Copyright Office, part of the Library of Congress and typically a small bureaucracy with just a few people, is about to make big news as it evaluates whether AI generated works can be copyrighted.

If the USPTO declines to recognize AI "inventors", and the Library of Congress similarly disallows copyrighting of AI generated material, that's going to really put a crimp in the monetization of AI generated intellectual property, since it cannot be protected.

My current thinking is that right now it's right thing to do.

The current technology of Generative Pre-Trained (GPT) AIs are nothing more than gigantic text or image prediction engines based on huge artificial neural network-based statistical models trained with enormous amounts of human created and curated input - input for which the original authors and artists are not being compensated, despite the fact that their work may have been copyrighted. There's no cognition or creativity involved.

But the counter argument is worth thinking about.

We ourselves are nothing but gigantic text or image prediction engines based on huge natural neural network-based statistical models trained with enormous amounts of human created and curated input - material we have read or examined - for which the original authors and artists are not being compensated, despite the fact that their work may have been copyrighted.

The difference is that when we write or make art, we may be trying use the trained neural network in our brain to create what others have not done before. That's creativity.

Update (2024-02-20)

Another counter argument is that there is creativity and cognition involved in the prompt engineering - the term used for the creation of the prompt, or series of prompts, the human operator gives the AI to produce its output. Perhaps, in this respect, using an AI is no different than using tools like Microsoft Word or Adobe Photoshop for your writing or art.

I'm still leaning towards not providing IP protection for AI generated output. But this is a complicated issue. As the subtitle of my blog reminds you, 90% of this opinion could be crap.

Sources

(Perhaps ironically, this article is based on the no doubt copyrighted work of several others that I would like to cite... if only I could remember them. As I do, I'll add the citations here.) 

Emilia David, "US patent office confirms AI can't hold patents", The Verge, 2024-02-13, https://www.theverge.com/2024/2/13/24072241/ai-patent-us-office-guidance

Cecilia Kang, "The Sleepy Copyright Office in the Middle of a High Stakes Clash over A.I.", The New York Times, 2024-01-25, https://www.nytimes.com/2024/01/25/technology/ai-copyright-office-law.html

Louis Menand, "Is A.I. the Death of I.P.?", The New Yorker, 2024-01-15, https://www.newyorker.com/magazine/2024/01/22/who-owns-this-sentence-a-history-of-copyrights-and-wrongs-david-bellos-alexandre-montagu-book-review

Shira Perlmutter, "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence", U.S. Copyright Office, Federal Register, 2023-03-10, https://copyright.gov/ai/ai_policy_guidance.pdf

Katherine Kelly Vidal, "Inventorship Guidance for AI-assisted Invention", U.S. Patent and Trademark Office,  Federal Register, 2024-02-13, https://public-inspection.federalregister.gov/2024-02623.pdf