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The USPTO wants to know if artificial intelligence can own the content it creates

The US office responsible for patents and trademarks is trying to figure out how AI might call for changes to copyright law, and it’s asking the public for opinions on the topic. The United States Patent and Trademark Office (USPTO) published a notice in the Federal Register last month saying it’s seeking comments, as spotted by TorrentFreak.

The office is gathering information about the impact of artificial intelligence on copyright, trademark, and other intellectual property rights. It outlines thirteen specific questions, ranging from what happens if an AI creates a copyright-infringing work to if it’s legal to train an AI on copyrighted material.

It starts off by asking if output made by AI without any creative involvement from a human should qualify as a work of authorship that’s protectable by US copyright law. If not, then what degree of human involvement “would or should be sufficient so that the work qualifies for copyright protection?”

Other questions ask if the company that trains an AI should own the resulting work, and if it’s okay to use copyrighted material to train an AI in the first place. “Should authors be recognized for this type of use of their works?” asks the office. “If so, how?”

The office, which, among other things, advises the government on copyright, often seeks public opinion to understand new developments and hear from people who actually deal with them. Earlier this year, the office similarly asked for public opinion on AI and patents.

None of these questions have concrete answers in US law, but people have been debating the potential outcomes for years. The situation might be a little clearer when you’re looking at something like an AI-based app where a user has to make a lot of decisions to shape the output. “I think what’s protectable is conscious steps made by a person to be involved in authorship,” Zvi S. Rosen, lecturer at the George Washington University School of Law, tells The Verge. But when it comes to an AI that spits out a result with a single click, that could be a different matter. “My opinion is if it’s really a push button thing, and you get a result, I don’t think there’s any copyright in that.”

But it’s not always cut and dry. Already, coders have claimed authorship over the “push button” works their AI software creates, which happened earlier this year in a distribution deal Warner Music brokered with the startup Endel. “That’s where it gets more complicated,” Rosen says. “I don’t have a clear answer on that.”

As The Verge previously examined, questions like these are at the heart of ongoing discussions around AI and copyright law. It’s a downright messy subject with no clear answers. There is some basic guidance in the Compendium of US Copyright Office Practices, which says that works produced by a machine with no creative input or intervention from a human can’t be given authorship. But it looks like the Patent and Trademark Office feels this definition won’t hold up as AI’s hand in creative works continues to get more complicated and nuanced.

Usually, the USPTO only gets a few responses from the public when it makes these types of inquiries, with the bulk coming from law firms, companies, and various interest groups. But anyone can send in a comment, and Rosen says it would be beneficial for individual creators to contribute. “[The office] is looking for specific concerns and interactions,” he says, “so if, for example, a musician has worked with AI and can attest to a particular experience or grievance, that’s helpful.”

As AI becomes increasingly advanced, commonplace in the creative workflow, and capable of making its own material, the questions the office is posing have ceased being theoretical and will have to be answered. “It’s not surprising [the office] is doing this,” says Rosen. “I think everyone sees it coming. Given how long these things take, any legislative response is going to be late, but by trying to get out in front of it on the study end, it’s not going to be as late. That’s just how things work.”

The full list of the questions, along with directions on how to email your comments to the office are available in the Federal Register notice. The comment period closes on December 16th.


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