Are machine generated articles copyrightable?

In 2011 a macaque stole the camera of wildlife photographer David Slater and took this now widely distributed picture known as the “monkey selfie.”  Here’s the tricky bit: Seemingly in response to this photo, the United States Copyright Office now explicitly stipulates that items created by non-humans cannot be copyrighted.

The "Monkey Selfie"

The “Monkey Selfie”

Like most good controversies, this one started with money.  Under the interpretation that the photograph was generated by the monkey, who cannot hold a copyright, the picture was uploaded to Wikimedia Commons, which only allows free-use images.  Naturally Slater balked at the idea that the photograph was ineligible for copyright and requested that the image be removed, claiming that Wikimedia was costing him thousands in lost revenue.

Wikimedia refused, asserting that the photograph belonged to nobody and was ineligible for copyright.  Fast forward three years later, and the copyright office has determined in no uncertain terms that the photograph is indeed not copyrightable.  This article by David Plost, a law professor at Temple University, describes the whole ordeal in more detail and gives some insight into the potential ramifications of the ruling.  According to Professor Plost, this decision may mean that no machine generated content is copyrightable:

The Report goes on to state that musical works, for instance, like all works of authorship, must be of human origin; thus, a work created by solely by an animal would not be copyrightable, nor would a work, more plausibly, generated entirely by a mechanical or an automated process. And similarly, a choreographic work performed by animals, machines, or other animate or inanimate objects is not copyrightable.

Obviously I don’t have a background in law, and prior to reading Plost’s post I would have assumed that content generated by an algorithm would still be considered a product of human creation.  The human created the algorithm, and any derivative works generated by the algorithm would in some sense also be created by a human.  In that way, the copyright process would be more analogous to ownership of physical property.  If someone built a fully-automated widget factory, no one would claim the widgets belong to the factory.  Yet the language in the Copyright Office’s compendium appears to suggest if an algorithm designed the widgets, the copyright belongs to nobody:

The Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.

The Associated Press is already using artificial intelligence to write stories, and evidently for certain categories of news people cannot tell the difference between software generated content and stories written by humans.  Are these articles copyrightable?

Automated news could be just the tip of the iceberg.  At what point are the reports, insights, and analytics generated by a machine learning algorithm disqualified from copyright?  Can a photo selected from a video stream by an algorithm be copyrighted?  I’m sure some law folks have a better idea than me, but for now, the issue seems open to debate.  The number of companies interested in this sort of work is growing rapidly, and this aspect of intellectual property law could have a big impact on their business models.  Regardless of the outcome, intellectual property rights with respect to artificial intelligence will definitely be an area to watch.

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