The Machine Author: What Level of Copyright Protection Is Appropriate for Fully Independent Computer‐Generated Works?

U.S. copyright law is grounded in a utilitarian philosophy: authors are granted a limited monopoly to incentivize production of original expressive works for the benefit of society as a whole. This philosophy may need to be applied to non‐human, machine authors in the very near future. Works of literature, music, and art are increasingly being generated through the execution of software programs, suggesting that these machine‐authored works may become the norm rather than the exception. The burgeoning of computer‐generated works raises novel and fascinating questions of copyrightability, but the existing literature neglects to address a basic question: does extending copyright protection to machine‐authored works promote or hinder the purpose of copyright law?

This Comment makes several contributions to the scholarship on copyright law. First, it poses fundamental questions regarding how the existing copyright framework would be applied to the various players that contribute to machine‐authored works and notes the problematic aspects of such application, particularly in identifying the legal author of the work. Second, it evaluates whether—in the case of machine‐authored works—the human author should be allocated rights based on the economic incentive theory. It argues that inflexible application of copyright law creates a contribution/rights paradox because the party that contributed most to the creation of the work—its author—is not the party to whom we would like to allocate copyright protection. Finally, the Comment posits that because copyrights provide little economic incentive to the players involved in creating machine‐authored works, it would be inappropriate from a social policy standpoint to extend protection to fully independent computer‐generated works.

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