Are Copyrighted Works Only By and For Humans? -- Mark A. Fischer

Why should humans own all the worldamp8217s copyrights The question is prompted by a photograph thatamp8217s made worldwide news In Indonesia a female crested black macaque monkey picked up a camera owned by photographer David Slater I wonamp8217t focus much on the story of the monkey and her selfie because that topic has already been welldiscussed in the media Yet the story sets the table for more intriguing and ultimately more important issuesA brief recap of the story of the monkey and the selfie follows The monkey did what a lot of us would do with a camera She took selfies Just as with selfies shot by people some of the images were out of focus and poorly framed Some of the images are of such impressive quality though that postings on photographyoriented websites question if a monkey could have really created them Sounds a little like the ominous beginning of a scifi series in which humans underestimate animal intelligence We know how that endsAccording to press reports Slater says the monkey indeed did shoot the images but that Slater not the monkey is the owner Thatamp8217s presumably because Slater owns the camera and established at least some of the conditions for the photo shootsSlater has objected to publication of the selfie on Wikipedia He claims that the publication is infringement of his copyright Wikimedia which sources the image to Wikipedia claims that monkeycreated images are not protectable under copyright because only humans can create copyrighted worksThere is some support for Wikimediaamp8217s view Itamp8217s true that under US law copyright protection probably extends only to works of authorship created by humansThe Compendium II of Copyright Office Practices says in Section 20202bHuman author The term quotauthorshipquot implies that for a work to be copyrightable it must owe its origin to a human being Materials produced solely by nature by plants or by animals are not copyrightableFurther The Compendium goes on to say in Section 50303aWorks not originated by a human author In order to be entitled to copyright registration a work must be the product of human authorship Works produced by mechanical processes or random selection without any contribution by a human author are not registrable Thus a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable random patterns is not registrable Similarly a work owing its form to the forces of nature and lacking human authorship is not registrable thus for example a piece of driftwood even if polished and mounted is not registrableProbably the best view of the law is that for Slater to own a valid copyright if US law applied to the situation he would to have had to have undertaken more to create the images such as doing things like setting up the lighting establishing camera angles from a camera mounted on a tripod or creating a set backdrop for the images If Slater had not actually pushed the shutter button it shouldnamp8217t matter That final functional step is hardly the determination of creativity and copyright ownershipIt is beyond doubt that artificial intelligence amp8220AIamp8221 machines and systems already can and will create music art and literature Some such works will be viable financially If not valuable or even any good protection is possible Copyright protection for humancreated works is not only for works of literary and artistic merit Mediocrity is protected tooSo should copyright law protect such nonhuman copyrights Inevitably copyright law will have to do so Perhaps given the Citizens United line of reasoning corporations will and should own the copyright in works created entirely by machines That may well be a sensible resultAnimalcreated copyrighted works might be a harder question to answer My labradoodle Madison is talented in many ways But I know her well enough to say with accuracy that she would much rather have a strip of bacon than a copyright Even in recognition of the growing trend of animal rights it may be best to keep animals and copyright lawyers apart when it comes to legal issues Not every copyright question requires an answerWhat will be the duration of nonhuman copyrights The current copyright term of protection is the life of the author plus 70 years That duration is highly controversial for being longer than is necessary to encourage creators to create and incentivizing creativity is at the heart of US copyright law and philosophy Several years ago the Supreme Court decided a case objecting to that duration when it was extended from the life of the author plus 50 years The additional 20year term extension was upheldIsnamp8217t focusing on the 70 years portion of that formulation shortsighted Given the biotech and biomedical revolutions and considering the nonhuman authors of the future the lifetime portion may be the one to watch more closely as to long copyright terms Robots obviously can have an indefinite lifespan They and for that matter animals also may need different kinds of incentives to createWith the rapidly increasing sophistication of robots and the inevitable movement toward the singularity when humans and technology become as one in ways we probably canamp8217t grasp today there are far bigger questions than copyright law But one of the many issues is that new nonhuman systems will create copyrightable works of undeniable merit Perhaps it isnamp8217t too much to imagine a world in which both the creators and the audiences for such works are not humans at least as we know humanity todayBefore someone shouts amp8220Take your stinking paws off my copyright you damned dirty apeamp8221 regarding ownership of the animal selfies of today the future of copyright will someday be to some extent in the hands paws and appendages of nonhumans initially as creators and perhaps ultimately as appreciative nonhuman audiencesMark A Fischer is a partner at Duane Morris LLP His law practice is focused on solving problems and making deals for innovative companies institutions and individuals Mr Fischeramp8217s clients are typically in the creative industries such as new media social networking music interactive entertainment information technology software television publishing and toys He may be contacted at mafischerduanemorriscomRead all Mark39s MediaBizBloggers commentaries at Mark A FischerCheck us out on Facebook at MediaBizBloggerscomFollow our Twitter updates MediaBizBloggerThe opinions and points of view expressed in this commentary are exclusively the views of the author and do not necessarily represent the views of MediaBizBloggerscom management or associated bloggers MediaBizBloggers is an open thought leadership platform and readers may share their comments and opinions in response to all commentaries

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