Artificial Intelligence, Autonomous Creation, and the Future Path of Copyright Law

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased.

The Article then discusses a third line of arguments— harmonization-based arguments—and identifies select instances in which Congress matched the protection offered by other jurisdictions or declined to do so. This Article further shows that global copyright law developments have slowly diverged in the AI space. In view of these growing divergences, U.S. legislators and policymakers are now confronted with a key policy choice at the intersection of copyright and AI: should the United States retain existing approaches, follow other jurisdictions, or work with these jurisdictions to develop harmonized AI-related international copyright standards? To inform the future debate on copyright and AI, the second half of this Article highlights the different areas in which substantial copyright law and policy reform may emerge in the AI space.

It further discusses four options the United States can take to shape the future path of copyright law: (1) international treaty negotiations; (2) soft law instruments; (3) a global multi-stakeholder dialogue; and (4) choice-of-law principles.