The Evolution of Authorship: Work Made by Code

Abstract

This short article — a transcript of remarks from the Kernochan Center’s fall 2015 symposium, “Copyright Outside the Box” — considers whether U.S. copyright law requires human authorship as a precondition for protection of an artistic work. Tracing the surprisingly long history of copyright law’s grappling with the status of computer-generated works, I ask whether the increasing sophistication and independence of generative code should cause us to rethink embedded assumptions in the law about the meaning and origin of creativity and authorship. Because copyright law already accommodates non-human authors (i.e., corporations) through the work made for hire doctrine, I argue here (revisiting my 2012 article Coding Creativity) that recognition of AI authorship may be a less profound doctrinal leap than it may seem. Other countries already protect works generated autonomously by computers. In the United States, we can decide for policy reasons that machine-authored works should not be protected by copyright, but that choice is not inevitable given the current state of the law both here and abroad.