Indispensable Human Touch: Mimicry of Human Intelligence by AI Not Creativity

Key Points

1. Copyright and patents only protect works of human creators
2. Machines cannot be authors or inventors, they only simulate human intelligence
3. The scope of protection for AI-derivative works and inventions is nascent

Introduction

The original purpose of intellectual property laws is to protect the rights of authors and inventors by the grant of limited term statutory monopolies. Two main rationales underpin these monopolies: (a) the need to reward creators for the time and effort expended in materialising their personality, and thereby (b) enriching the society and improving its wellbeing.

AI’s ability to solve problems and produce results by simulating human intelligence has begun to test the outermost boundaries of copyright and patent laws. For the first time since these law developed, IP Offices and courts around the world had to decide whether machines can be authors and inventors entitled to exclusive rights in their outputs.

Interestingly, some of the earliest cases in this space involve the same plaintiff – Dr Stephen Thaler, a pioneer in the area of AI and the inventor of the Creativity Machine^® Paradigm (CM) and the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS).

Copyright

Thaler v Perlmutter, is the latest failed attempt by Dr Thaler to secure copyright for an image, nominating CM as the author. Applying for copyright registration in the US, Dr Thaler stated that the work had been ‘autonomously created by a computer algorithm running on a machine‘, and that he should be transferred the copyright as CM’s owner.

The US Copyright Office denied copyright registration on the basis that the work lacked human authorship. Dr Thaler countered that such a requirement was unconstitutional and unsupported by either statute or case law but cited no precedent that would undermine the anthropomorphic construction of the US Copyright Act. In this context, Dr Thaler was making a policy (rather than a legal) argument in favour of legal protection for works produced solely by AI.

Dr Thaler appealed the unfavourable decision to the US District Court for the District of Columbia, arguing it was incorrect (on the basis that human authorship should not be a prerequisite to gaining copyright protection) and contrary to the purpose of the US Copyright Act ‘to promote the progress of science and useful arts‘.

In August 2023, the court affirmed the refusal to register the copyright stating that human creativity is a fundamental prerequisite for copyright protection to arise:

UNITED STATES: Thaler v Perlmutter (No. 1:22-cv-01564, (D.D.C. 8/18/23))

Copyright is designed to adapt with the times. Underlying that adaptability, however, has been a consistent understanding that human creativity is the sine qua non [indispensable requirement] at the core of copyrightability, even as that human creativity is channelled through new tools or into new media.

However, the court also acknowledged that the advent of AI posed complex novel copyright law questions about derivative works (works made by humans using AI), including in relation to the amount of human input necessary to qualify the AI user as an author, the scope of any resultant copyright protection and the process of assessing originality.

Patents

Dr Thaler also filed patent applications for an invention titled ‘a food container based on fractal geometry‘ with the Patent Offices of various countries, nominating DABUS as the sole inventor.

In most jurisdictions, the applications lapsed, insofar Dr Thaler failed to identify a natural person as the inventor. Dr Thaler’s arguments in subsequent appeals that patent laws did not preclude an AI system being treated as an inventor and that inventions generated by AI should be patentable in order to encourage innovation and public disclosure were also ultimately unsuccessful (the matter remains on foot in the UK – the judgment of the Supreme Court is anticipated before the end of 2023):

AUSTRALIA: Commissioner of Patents v Thaler [2022] FCAFC 62

The inventor for the purposes of [patent law] is the person who is responsible for the ‘inventive concept’. Such an inventor is the person, or one of the people, who materially contributes to the inventive concept as described in the specification and the subject of the claims.

…[patent] law has proceeded on the assumption that only a natural person could be an inventor.

It is not to the point that Dr Thaler may have rights to the output of DABUS. Only a natural person can be an inventor for the purposes of the Patents Act and Regulations. Such an inventor must be identified for any person to be entitled to a grant of a patent.

UNITED STATES: Thaler v. Vidal, No. 2021-2347 (Fed. Cir. 2022)

The Patent Act expressly provides that inventors are ‘individuals.’ [but]… does not define ‘individual.’

… when used [a]s a noun, ‘individual’ ordinarily means a human being, a person.

…the plain meaning of ‘inventor’ in the Patent Act is limited to natural persons.

Statutes are often open to multiple reasonable readings. Not so here. This is a case in which the question of statutory interpretation begins and ends with the plain meaning of the text. In the Patent Act, ‘individuals’– and, thus, ‘inventors’ – are unambiguously natural persons.

Thaler’s policy arguments are speculative and

lack a basis in the text of the Patent Act and in the record.

… the text before us is unambiguous, and we may not ‘elevate vague invocations of statutory purpose over the words Congress chose.’

Conclusion

The IP laws are inherently anthropomorphic – they only protect humans, insofar as only people can create. Dictionaries define ‘creativity‘ as the ability to produce original and unusual ideas, or to make something new or imaginative. Conversely, every output produced by AI is the resultant of data lakes on which it was trained.

Even the proponents for IP justification for AI agree that:

‘At present, AI-related processes are still directed by humans. The development and designing of an AI tool and the use of a developed AI tool to generate new intangible goods generally requires considerable human input.[1]‘

Mimicry of human intellect by AI is just that – an imitation, which will never be imaginative or original.

No justification exists for extending the benefit of IP monopolies to machines, essentially composed of a source code (itself, a literary work in which copyright subsists) and reliant on the analysis of pre-existing data, and this should remain the law.

Doing otherwise would elevate an object to its creator and pose risk to human-led progress.

Takeaway

If you utilise AI in your creative or inventive endeavours, it may be worthwhile mapping out these processes and the associated ratio of human skills and machine power involved. Any ‘evolution‘ of AI through machine ‘learning‘ during this process should also be separately noted, as this might man that pre-existing (third-party) data was utilised.

These very basic steps could assist in determining the level of originality/ novelty/ inventiveness with respect to an AI-derivative subject matter and the resultant scope of protection.

[1] Reto M. Hilty, Jörg Hoffmann, Stefan Scheuerer, Max Planck Institute for Innovation and Competition Research Paper No. 20-02 Intellectual Property Justification for Artificial Intelligence (2020)