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 Copyright Office’s newfound requirement of the so-called ‘traditional elements of authorship’ – including sufficient control, avoidance of random elements in the creative process, prediction of the final work ahead of time, and dictation of specific results – finds no support in the text, history, or structure of the Progress Clause, Supreme Court precedent, or the Copyright Act. It limits ‘Authors’ to ‘traditional elements’ that ‘Inventors’ in the same Progress Clause do not face. Nothing in the original public meaning of ‘Progress’ supports the Copyright Office’s anomalous restriction.
Focusing on the first principles of authorship under the Progress Clause and the Framers’ overriding objective to ‘promote progress’, the sole 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 calls the bare minimum. Many, but not all, AI prompt-engineered works will easily pass the test, but works that are entirely autonomously generated will not. Not only is this bare minimum approach more faithful to the Progress Clause, 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 general approach emerging in other countries, including the EU, China, and South Korea. Harmonizing US copyright law with the approach of major trading partners itself advances progress.
Lee, Edward, Prompting Progress: Authorship in the Age of AI (October 22, 2023), Florida Law Review, volume 76, 2024 Forthcoming.
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