That Thing Ain\u27t Human: The Artificiality of Human Authorship and the Intelligence in Expanding Copyright Authorship to Fully-Autonomous AI

The U.S. Copyright Review Board (the Board ) decided that works entirely created by fully-autonomous artificial intelligence ( AI ) are not entitled to copyright protections. The Board based its decision on a copyrightability requirement referred to as “human authorship.” However, the Copyright Act of 1976 (the Act ) never mentions a “human” requirement to copyright authorship, nor do most of the Board’s cited authorities. Denying authorship to intellectually-impressive and economically-valuable works under a poorly-established legal subelement is antithetical to copyright law’s history and to Congress’s constitutional mandate to “promote . . . [the] useful [a]rts . . . .” It leaves creators who use AI to create works with no protections for their creations. But this Note argues that, when properly interpreting various copyright-law authorities that allegedly establish a “human authorship” requirement, copyright law does not require “human authorship,” but “intellectual labor.” Under this standard, AI-produced works are entitled to copyright protections