Artificial intelligence (AI) is mentioned so often that it has become ubiquitous. Virtually every news burst and advertisement refers to it. What is AI? The acronym appears to encompass all things run by software, implying there is some intelligence behind accomplishments of the software. One electrical engineer stated, with a satirical grin, that “our company switched to calling all of its products AI.” Is any computer program AI?
What is “Intelligence?”
Obviously, AI is artificial (not part of the natural world), but is it actually intelligent? Does intelligence mean the ability to calculate at hyper speed or to independently start on a quest? The ability to independently start a quest would mean without motivation or instruction from another being. For example, an earthworm can independently start to crawl going from point A to point B but cannot calculate the distance it crawled. Is this intelligence? Software on the other hand can calculate the distance from point A to point B in hypersonic fashion, but can it initiate the crawl independently? So, which one is intelligent? A conundrum at the very least. How does a philosophical soliloquy about AI pertain to intellectual property? If the premise is that AI is intelligent, can it own (or create) intellectual property? The United States Constitution provides protection for authors and inventors. Article 1 Section 8, Clause 8. James Madison certainly did not think that authors and individuals were something other than humans when he wrote the Constitution.
The U.S. Constitution
Strangely, the courts have ignored Article 1 Section 8, Clause 8 when it comes to AI. In Thaler v. Vidal the Federal Circuit Court of Appeals (the court which hears all patent appeals) relied on the wording of the Patent Act, not the Constitution, to affirm a summary judgment decision that AI cannot be an “inventor.” Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022). The Federal Circuit stated that the Patent Act expressly provides that inventors are individuals, while admitting that the Patent Act does not define what an individual is. The Federal Circuit referred and relied upon a Supreme Court decision that held: “[T]he term ‘individual’ as used in the Act [the Torture Victim Protection Act of 1991] encompasses only natural persons.” Mohamad v. Palestinian Authority, 566 U.S. 449 (2012). The Federal Circuit further referred to the use of personal pronouns in the Patent Act such as himself and herself, which referred to an individual. The court found it interesting that the pronoun “itself” was not used. Thaler brought up the canon of constitutional avoidance, arguing that permitting an AI program to be an inventor would support the constitutional purpose of patents, namely, “to promote the progress of Science and the useful Arts.” The court held that this argument was inapplicable to the present set of facts since Thaler did not argue that limiting inventorship to human beings was unconstitutional. This would bring up the interesting issue of whether AI has constitutional rights.
Copyrights
What about authors – can AI be an “author” for copyright purposes? The U.S. Copyright Office has taken the position that it will only register works created by human authors. However, copyright registration does not create copyright rights, it adds significant procedural and legal benefits to those already-existing copyright rights. Copyright rights are automatically created once a work is fixed in a tangible medium of expression, 17 U.S.C. § 102. Is a work created by AI even copyrightable in the first instance? In the context of a corporation or company, any copyrightable work created by an employee (i.e., an individual) is automatically owned by the company. Can the issue of whether an author has to be a human be ignored in this situation, since the company owns it automatically?
Our AI Take Away
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