Brent Randall is a JD candidate at the University of Ottawa.
The Canadian Copyright Act does not explicitly define the term “author”, but the statute does appear to assume that the “author” will be a human. A recent paper by Professor Annemarie Bridy seeks to challenge this assumption as she argues that “all creativity is inherently algorithmic” and therefore works produced by computers should not be viewed as significantly different from those produced by humans.
In her paper, Coding Creativity: Copyright and the Artificially Intelligent Author, Professor Bridy is not focusing on the creative ways humans interact with computers to author works. Instead, she concerns herself with “the ways in which people are enabling computers to produce art and other creative works in new ways, virtually all by themselves.”
In the 1884 case, Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court of the United States considered the extension of copyright protection to photographs, despite the creation of such works relying heavily on the camera and not just the human. The Court refused a judgment that would make the camera the author in such instances and instead used a causation argument to find that the author is “the person who effectively is as near as he can be, the cause of the picture which is produced…”
Building on Burrow-Giles was the 1903 Supreme Court of the United States decision, Bleistein v. Donaldson Litographing Co., in which it was affirmed that, “[t]he copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses…something irreducible, which is one man’s alone. That something he may copyright…”
The cases of Burrow-Giles and Bleistein, Professor Bridy argues, “marks the jurisprudential moment at which copyright protection became virtually guaranteed for any work produced by human hand, regardless of its perceived creativity or aesthetic merit.” But what, exactly, creativity is has not been clearly explained with the closest attempt coming in the 1991 United States Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co., Inc.
Professor Bridy focuses heavily on trying to figure out the definition of creativity and whether artificial intelligence (AI) is capable of being creative or, if by its very definition, creativity implies the work of a human. If, for the sake of argument, creativity does not require a human, what would a computer have to do to produce something creative and therefore potentially be considered an author? Must it produce results that are unpredictable? Can a computer do anything unpredictable, if it must first be created and programmed by a human, or is that just a more complicated instance of human causation as seen in Burrow-Giles? What follows for Professor Bridy is a deeply philosophical exploration of the meaning of thought and the workings of the human mind. Cognitive scientist Marvin Minsky, for instance, has argued that the brain is nothing more than a “meat machine”, presumably subjected to its own kinds of “programming” from parents, society, and education.
The ultimate conclusion for Professor Bridy is that the American “work made for hire” doctrine could be applied in cases in which an author is a computer. The United States Copyright Act of 1976 defines work for hire quite similarly to Canada’s Copyright Act’s section 13(3), which states that, “[w]here the author of the work was in the employment of some other person…the person by whom the author was employed shall…be the first owner of the copyright.” Looking at creation in this way avoids complications with deciding who – or what – the author is, since it essentially “bypasses” their rights associated with the work (except for moral rights, which likely would not matter to a computer, at least at this point in the development of AI).
What one’s definition of “creativity” includes ultimately has a major impact on the definition of authorship. Such a definition would likely involve concepts of unpredictability and novelty. But even this definition causes problems for AI authorship, at least for some, since there is a question of how unpredictable and novel creations can be when they are made by a machine built and programmed by a human. However, it seems that computers are capable of behaving unpredictably (we see this in video games, for example) and as such, their creativity may be enough for authorship. Regardless of one’s definition of creativity and authorship, it seems that the status of works created by AI may not matter as much if the copyright in such works is ultimately owned by human employers.