Portal:Review Board of the United States Copyright Office

“ In response to the Office’s citation of relevant case law addressing human authorship, Thaler asserts that “there is no binding authority that prohibits copyright for [computer-generated works] ,” id.; that copyright law already allows non-human entities to be authors under the work made for hire doctrine, id. at 4; and ultimately that the Copyright Office “is currently relying upon non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.” ”

“ 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. ”

“ Lowry, 323 F.3d 805, 813 (9th Cir. 2003) (finding depictions of jellyfish not protected by copyright because material “first expressed by nature are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them”) . These court decisions are reflected in the Office’s guidance in the Compendium, which provides examples of works lacking human authorship such as “a photograph taken by a monkey” and “an application for a song naming the Holy Spirit as the author.” Compendium (Third) § 313.2. ”

“ In its summary of responses, USPTO noted that “the vast majority of commenters acknowledged that existing law does not permit a non-human to be an author [and] this should remain the law.” Id. at 20–21. ”