INTRODUCTION
… In this Essay, I take a narrower focus. Until the advent of AI, particularly LLMs, there was, as noted above, at least one human creators or inventors who caused the creation or invention to occur. This human involvement gave originality to a copyrighted work or inventiveness to an invention, which made it non-obvious to a person skilled in the art. Put simply, there has always been only one degree of separation between the creation or invention on the one hand and one or more persons on the other. Thus, IP has always been first degree.
I then ask the following question: what happens when the kind of material currently protected by copyright and patent law is created not by humans, but by machines built, programmed, and trained by humans. Thus, for the first time in history, we must ask whether second-degree IP rights should exist, which requires both a doctrinal analysis of current factors and, recognizing that such factors predate the radical changes just described, a normative analysis of whether it is justified to grant such rights …
Daniel J Gervais, Second-Degree Intellectual Property (2024) 39 Berkeley Technology Law Journal 1091.
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