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Abstract

This Article examines a question of profound importance today: do the works people create using artificial intelligence (AI) qualify for copyright? This Article explains why the Copyright Office’s 2023 guidance excluding AI-generated works from copyright is wrong. The Office’s newfound requirement of the so-called “traditional elements of authorship”—including sufficient control, avoidance of random elements in the creative process, prediction of the final work ahead of time, and dictation of the specific results—finds no support in the text, history, or structure of the Progress Clause, Supreme Court precedent, or the Copyright Act, past or present. It limits “Authors” to “traditional elements” that “Inventors” in the same Progress Clause do not face. And it thwarts experimentation, trial-and-error, and new creative techniques. Nothing in the original public meaning of “Progress” or “Authors” support the Copyright Office’s anomalous restriction. Focusing on the first principles of authorship under the Progress Clause and the Framers’ overriding objective to “promote progress,” the sole test of authorship examines whether the person contributes at least a minimal level of creativity in the origination of the work, which may be satisfied simply by a person’s selection or arrangement of uncopyrightable elements in the work. The requisite level is, as the Supreme Court recognized, “extremely low,” or what this Article calls the bare minimum for authorship. Many, but not all, AI prompt-engineered works will easily pass the test, but works that are entirely autonomously generated will not. This bare minimum approach is not only more faithful to the Progress Clause but also preserves Congress’s power to decide how best to promote progress in the twenty-first century. The recommended approach aligns with the general approach emerging in other countries, including the European Union (EU), China, and South Korea. Harmonizing U.S. copyright law with the approach of major trading partners itself advances progress.

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