Brown, Neri, Smith & Khan, LLP
materials.” U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 602.4(C) (3d ed. 2021) (“Compendium (Third)”). But copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” Compendium (Third) § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879)); see also Compendium (Third) § 313.2 (the Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human author” because, under the statute, “a work must be created by a human being”). So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence.[1] He has done neither.
Thaler does not assert that the Work was created with contribution from a human author,[2] so the only issue before the Board is whether, as he argues, the Office’s human authorship requirement is unconstitutional and unsupported by case law. Currently, “the Office will refuse to register a claim if it determines that a human being did not create the work.” Compendium (Third) § 306. Under that standard, the Work is ineligible for registration. After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice, the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.
The Copyright Act affords protection to “original works of authorship” that are fixed in a tangible medium of expression. 17 U.S.C. § 102(a). The phrase “original work of authorship” was “purposely left undefined” by Congress in order to “incorporate without change the standard of originality established by the courts under the … [1909] copyright statute.” H.R. Rep. No. 94-1476, at 51 (1976). The term is “very broad,” id. at 52, but its scope is not unlimited. Congress chose this language to encompass a smaller set of creative works than could be protected under the Constitution.[3] Because of this gap, the Act leaves “unquestionably other
- ↑ Under the heading “Policy Objections,” the Second Request argues that denying copyright protection for machine-generated works will encourage individuals to “act dishonestly” and “inaccurately claim authorship for work done by machines.” Second Request at 5. The Board is unconvinced that applying existing case law will result in applicants committing fraud. The Copyright Act provides criminal penalties for anyone who “knowingly makes a false representation of a material fact in the application for copyright registration … or in any written statement tied in connection with the application.” 17 U.S.C. § 506(e). In addition, the Register of Copyrights has the authority to cancel any registration where the “material deposited does not constitute copyrightable subject matter” or “the claim is invalid for any other reason.” 17 U.S.C. § 410(b); see also Compendium (Third) § 1807. Applicants who mislead the Office do so at their peril.
- ↑ Because Thaler has not raised this as a basis for registration, the Board does not need to determine under what circumstances human involvement in the creation of machine-generated works would meet the statutory criteria for copyright protection. See Compendium (Third) § 313.2 (the “crucial question” of human authorship is whether a computer is “merely being an assisting instrument” or “actually conceive[s] and execute[s]” the “traditional elements of authorship in the work”) (quoting U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, at 5 (1966)).
- ↑ As the House Report explains, Congress selected the term to avoid confusion about how the scope of statutory protection compared with the scope of material the Constitution authorizes Congress to protect. H.R. Rep. No. 94-1476, at 51. Under the 1909 Copyright Act, protection accrued to “all the writings of an author,” which led to uncertainty about whether the scope of protected material under the law was “coextensive” with the “writings” of “authors” that the Constitution gives Congress the power to protect. H.R. Rep. No. 94-1476, at 51; compare 1909 Copyright Act, Pub. L. No. 60–349, § 4, 35 Stat. 1075, 1076 (1909) (“the works for which copyright may be secured under this Act shall include all the writings of an author”) with U.S. Const. art I, § 8, cl. 8 (authorizing Congress
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