Edward Lee (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Prompting Progress: Authorship in the Age of AI (Florida Law Review, Vol. 76, 2024 Forthcoming) on SSRN. Here is the abstract:
This Article examines a question of profound importance today: do the works people create using AI qualify for copyright? The Article explains why the Copyright Office’s new guidance excluding AI-generated works from copyright is wrong. The federal courts should return to the first principles of authorship and reject the imposition of any artificial requirements—such as the Copyright Office’s newfound requirements of sufficient control, avoidance of random elements in the creative process, prediction of the final work ahead of time, or dictation of specific results—that restrict authorship or progress in the United States. Focusing on the first principles of authorship under the Copyright Clause and its overriding objective to “promote progress,” the proper test of authorship examines whether the person contributes, at least, a minimal level of creativity in the origination of the work, which may be satisfied simply by a person’s selection or arrangement of elements in the work. The requisite level is, as the Supreme Court recognized, “extremely low,” or what this Article describes as the bare minimum. Not only is this bare minimum approach more faithful to the Copyright Clause and Supreme Court precedent, but it also preserves Congress’s power to decide how best to promote progress in the twenty-first century. The recommended approach also aligns with the framework emerging in the European Union that divides AI works into two classes: (1) AI-assisted works, which may qualify for copyright, versus (2) autonomously generated AI works, which do not qualify.
Recommended.
