The Unexplored Future of State Copyrights and Patents in AI-Generated Creations

This is the first article to broadly explore the possibility of state copyrights and patents in AI-generated creations and what it could portend for the future of intellectual property law. The U.S. Constitution delegates to Congress, via Article I, the power to pass laws “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It reserves to the states or to the people, via the Tenth Amendment, certain unspecified powers not delegated to the federal government. These could include the power to recognize exclusive rights in “writings and discoveries” generated by artificially intelligent machines that, not being human, might not qualify as “authors and inventors” under Article I. If and when the states or the people attempt to exercise this power—and, after the initial submission and acceptance of this Article, at least one state, Arkansas, has now done so by statute—it could upend the present federal hegemony over copyrights and patents. Scholars and policymakers should carefully consider this possibility and its implications for innovation in the United States and beyond.