In a recent decision, the Review Board of the U.S. Copyright Office refused to register a creation autonomously created by a computer algorithm. The Office’s decision is in line with the US Supreme Court’s case-law.

Steven Thaler, the CEO of Imagination Engines, Inc. requested the United States Copyright Office to grant copyright protection to the creation titled “A Recent Entrance to Paradise” (“the Creation”). The application filed on 3 November 2018 mentioned the “Creativity Machine” as the author.

The Creation is part of what Thaler called a “simulated near-death experience” in which every single piece of art is created by an algorithm. Thanks to machine learning, the piece of art is a hallucinatory image, evoking after death.

On 12 August 2019, the Office rejected to grant copyright protection to the Creation because of lack of human intervention. Thaler requested the Office to reconsider its decision and subsequently argued that the human authorship criteria was “unconstitutional and unsupported by either statute or case law.” However, once again, Thaler’s attempt to register the copyright in the Creation failed: the Copyright Office indicated on 30 May 2020 that the applicant did not demonstrate a sufficient creative input or intervention by a human author in the Creation.

In addition to rejecting the “Work Made for Hire” U.S. doctrine invoked by Steven Thaler to contend that an artificial intelligence (“AI”) can be an author , the Copyright Office recalled that U.S. copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind”.

If the Copyright Act affords protection to “original works of authorship” that are fixed in a tangible medium of expression, such protection is not unlimited and U.S. courts, including the Supreme Court, limit copyright protection to human authors. The Copyright Office even recalled the recent well-known Naruto case where the Supreme Court refused to acknowledge copyright protection in a photograph taken by a monkey. The Copyright Office considered that “the original work of authorship” requirement is not unconstitutional as it allows for the protection of computer-generated work when there is at least minimal human creative effort at the time the work of art is created as highlighted by a report published in 1978 by the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) about the impact of computing technology on the copyright system.

French case law is in line with this position.

According to Article L. 112-1 of the French Intellectual Property Code (the “IPC”), “any work of the mind, regardless of its kind, form of expression, merit or purpose”, is eligible for copyright protection.

There is no registration requirement in France so that a creation benefits from protection as soon as it is original. French courts acknowledge the originality of a creation as soon as the said creation is endowed by the personality of his/her author.

The threshold of the originality requirement is low. However, according to a well-established case-law, the author of a work must be a natural person. It cannot be a legal person, an animal or a software.

The rationale behind this position is that French law only protects works of the mind and the creations at issue must bear the imprint of the personality of their author(s); legal persons, animals and AIs neither have a conscience nor have a personality that may come out of the works created by them.

The question then arises as to who owns a work created autonomously by an AI: the AI user? Its creator?

The contribution of the user and/or its designer being minimal or even non-existent, it is difficult to see how the personality of the latter can be reflected in the creations created by the AI.

Considering the absence of a work of the mind and the lack of originality of a creation resulting exclusively from an AI, such creations are thus today in the public domain and no intellectual property right is attached to them.

The CSPLA, an independent advisory body advising the Minister of Culture and Communication in the field of literary and artistic property, provided recommendations in a report dated 27 January 2020 . Thus, a sui generis right could be created to the benefit of the one bearing the risks of the investment, like the specific regime benefiting to database producers.

The European Parliament also suggested that a legal personality be acknowledged to IA .

For the time being, none of the above recommendations have been taken up by the French and/or European legislators.