Abstract from
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Copyright and patent law require the identification of an author or inventor, and further require the author or inventor to be human. We explore this requirement primarily with reference to U.S. law and provide additional illustrations from U.K. and E.U. law. A key rationale underlying the requirement of a human author or inventor is that there is something special and important about human creativity. As AI, particularly generative AI, becomes more capable of producing outputs that look like they could have been human-created, arguments have increasingly been raised that the AI-generated outputs should be afforded copyright and patent protection, on the same basis as those made by human authors and inventors. And there have been arguments that these AI-generated outputs exhibit sufficient creativity, novelty, or innovativeness, to satisfy the laws’ underlying creativity rationale. We examine the concept of creativity from a multidisciplinary perspective, and identify three conceptually distinct components, all of which are necessary for a complete account of creativity. The external component refers to whether an artifact (or idea, or other thing) exhibits the qualities of being novel, valuable, and (on some accounts) surprising. The subjective component focuses on the psychological process of a creative act, which appears to involve a dance between task-focused and mental-wandering states, mediated by a salience functionality, where the person recognizes and selects novel, appropriate ideas. Third, embedded in the analysis of both the external and subjective components is a (largely-implicit) recognition that the social context is integral to creativity; it plays a role in determining whether an artifact has value (or is “appropriate”), and influences the subjective psychological process of plucking certain ideas or conceptions out of the flow of mental activity. With this enriched account of creativity, we examine how copyright and patent law value not only the creativity of the artifact, but also (to varying extents) the subjective role and social context as part of creativity. We then consider some ways in which arguments that AI generated artifacts should be eligible for IP protection (e.g., because they are “just as good as” at least some human-generated and IP-eligible artifacts) are insufficient to satisfy the enriched understanding of the creativity requirement underlying the IP laws.
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​Keywords: ai, artificial intelligence, patent, copyright, human author, human inventor, creativity