In a recent ruling [1] [2], the US Copyright Office declined to copyright a digital image created by the AI-based, text-to-image software called MidJourney. The situation in Canada seems a little more ambiguous, “by registering an AI as a co-author, the Canadian Intellectual Property Office has taken a path that seems to strike a good balance.” [3] The question this raises for me is whether anything I create with this or similar AI-based tools can be protected from copying and resale without my permission.
It appears to me that copyright law is focused on the process of creation by a human, rather than the outcome of a piece of art, or as the US Supreme Court ruled an “original work of authorship fixed in any tangible medium of expression.” This notion perpetuated by the copyright laws is bound in a legacy of over 200 years of manual labour, which fails to recognize the advances and contribution of technology.
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By focusing on the process, rather than the outcome, suggests that depending on which key I press will determine whether the resulting digital image can be copyrighted. Why is that? Is this some anti-leftist plot? A gauche action by those who believe themselves more adroit? The sinister vs. the dexter?
The two keys in question are the Return Key on a keyboard and the Shutter Release on a camera. Activating either one will result in a digital image being created. Yet only the latter can be copyrighted. Having had experience with both, I can attest that the difference is not in the skill or difficulty of the press. The differences, as far as I can tell, is [1] the activity unleashed and [2] the source of content represented in the resulting digital image.
When I press the Return Key on my desktop, I am initiating a computational process that converts a textual message into an image using AI-Generation technologies. The source information for the resulting image is drawn from [potentially] millions of images which are transformed via some opaque, automated mechanism into something depicting a composition of the original terms.
When I press the Shutter Button on my camera, I am initiating a computational process that converts reflections of light into a number that corresponds to the intensity of the reflection at that specific position in the scene in front of the camera. The source of the information for the resulting image is drawn from the scene in front of the lens of the camera.
I think it is important to keep in mind that both results are mediated through a computational process. Both are a process that merges human activity and computational activity. The human activity for one is developing an idea or concept, then preparing a textual phrase that will generate an image corresponding to that goal, and possibly reiterating through these steps many hundreds or thousands of times. The human activity for the other—the photograph—is developing an idea or concept, then searching for a subject, or scene, that corresponds to that goal and taking its picture, possibly reiterating through these steps many hundreds or thousands of times. As AI-based technologies are further deployed into the photography processes the computational differentiators can be expected to the negligible. The difference will lie in the source of inputs: a database of images or the real world.
As to be copyrighted a work requires some human activity, the question is how much is enough?.
Currently the US Copyright Office argues the AI-Based approach lacks sufficient human activity to be considered enough, and therefore such works are not copyrightable. However, one might question why is a photograph seen as a human creation. The essence of the argument is that a photograph, when taken by a human author, represents their idea or concept.
In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court held that photographs were protected by copyright because they were “representatives of original intellectual conceptions of the author,” defining authors as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” 111 U.S. 53, 57–59 (1884).
But there are boundaries. If there is no idea or concept then there is nothing to copyright.
the Court explained that if photography was a “merely mechanical” process, “with no place for novelty, invention or originality” by the human photographer, then “in such case a copyright is no protection.” Id. at 59.4
The argument the Copyright Office makes in favour of the camera is as follows:
- a work may be registered if it qualifies as an “original work[] of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a).
- The [US] Supreme Court has explained that the term “original” in this context consists of two components: independent creation and sufficient creativity. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
- Re creativity:
- The Court observed that “[a]s a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Id. at 363. It found that there can be no copyright in a work in which “the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 359.
- in Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court held that photographs were protected by copyright because they were “representatives of original intellectual conceptions of the author,” defining authors as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” 111 U.S. 53, 57–59 (1884).
- the Court explained that if photography was a “merely mechanical” process, “with no place for novelty, invention or originality” by the human photographer, then “in such case a copyright is no protection.” Id. at 59.4
- the work must have been independently created by the author. In cases where non-human authorship is claimed, appellate courts have found that copyright does not protect the alleged creations.
Yet regardless of what those unfamiliar might think, creating an image with AI-based tools does take time, knowledge and effort.
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