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areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to.” Id. at 52.[1]
Courts interpreting the Copyright Act, including the Supreme Court, have uniformly limited copyright protection to creations of human authors. For example, in Burrow-Giles Lithographic Co. v. Sarony, a copyright defendant argued that photographs could not be protected by copyright because the statute at the time protected certain types of creations of an “author or authors” and “a photograph is not a writing nor the production of an author” because it is simply “a reproduction on paper of the exact features of some natural object or of some person.” 111 U.S. 53, 56 (1884). The Court rejected this argument, holding that an author is “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature” and that photographs are “representatives of original intellectual conceptions of [an] author.” Id. at 57–59. In the opinion, the Court referred to “authors” as human. See id. at 58 (describing a copyright as “the exclusive right of a man to the production of his own genius or intellect”), 60–61 (citing as “instructive” a decision from England where justices described an “author” as the “person” who was “the cause of the picture which is produced” and “the man” who creates or gives effect to the idea in the work).[2]
The Court has continued to articulate the nexus between the human mind and creative expression as a prerequisite for copyright protection. In Mazer v. Stein, the Court cited Burrow-Giles for the proposition that a work “must be original, that is, the author’s tangible expression of his ideas.” 347 U.S. 201, 214 (1954). And in Goldstein v. California, the Court again cited Burrow-Giles for the proposition that “[w]hile an ‘author’ may be viewed as an individual who writes an original composition, the term in its constitutional sense, has been construed to mean an ‘originator,’ ‘he to whom anything owes its origin.’” 412 U.S. 546, 561 (1973). The Office is compelled to follow Supreme Court precedent, which makes human authorship an essential element of copyright protection.
In addition to the Supreme Court precedent, lower courts have repeatedly rejected attempts to extend copyright protection to non-human creations. For example, the Ninth Circuit held that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.” Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997) (holding that “some element
- ↑ For this reason, the Board rejects Thaler’s argument that the human authorship requirement is “unconstitutional” because registration of machine-generated works would “further the underlying goals of copyright law, including the constitutional rationale for copyright protection.” See Second Request at 1–2. Congress is not obligated to protect all works that may constitutionally be protected. “[I]t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts.
- ↑ In this case, as well as a previous case, the Court suggested that the requirement that an “author” be human is required by the Constitution. See Burrow-Giles, 111 U.S. at 56 (describing beneficiaries of the Constitution’s intellectual property clause as “authors,” who are one of “two classes” of “persons”); see also Trade-Mark Cases, 100 U.S. 82, 94 (1879) (reading the Constitution’s grant of power to Congress to protect “writings” as extending “only as such [works] as are original, and are founded in the creative powers of the mind” or are “the fruits of intellectual labor”).
“[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”).
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