the first decision in the United States

As is well known, the debate on the ownership at the head of one artificial intelligence was the subject of a CD “global litigationwhich had mixed results. This is the litigation promoted by Stephen Thaler, the creator of DUST (acronym of “Device for the Autonomous Bootstrapping of Unified Sentience”), an Artificial Intelligence system which would be able to simulate the process of brainstorming and to create new inventions. If in Australia e in South Africa his request to recognize the ownership of the inventions directly to DABUS was accepted, in the United Kingdom, in Europe and in the United States it was rejected.

Similar negative orientation with regard to the recognition of the AI ​​it was expressed with a decision issued on 21 February 2023 by US Copyright Office (henceforth USCO). That office has denied copyright protection (copyright) to images produced by the Midjourney artificial intelligence program. It would seem to be the consolidation of an orientation according to which the ownership of intellectual property rights should be reserved to subjects capable of acquiring legal capacity, i.e. the ability to exercise rights and duties and therefore exclusively to human beings.

However, the US Copyright Office opens some spaces toinvolvement of AI software capable of generating contentthe. The USCO’s decision concerns the graphic novel “Zarya of the Dawn”, created by artist Kristina Kashtanova, who said she was the creator of the story, but admitted that she facilitated with Midjourney for the creation of the images. On this point, the USCO affirmed that only the elements of history produced by the human mind, in this case the elements of history, such as the compilation of texts and images attributable to the author were protected by copyright, but not those produced with Midjourney’s help.

This decision may have a double effect: on one side influence the use of images created by humans but used for the artificial intelligence training process. They could not be freely used for algorithm training purposes; on the other hand the consolidation of the orientation relating to the fact that only a subject with legal capacity, i.e. a human being, can be the owner of rights related to intellectual property. Therefore the images produced with the help of Midjourney are not subject to copyright laws.

One might ask who owns this responsibility. In the decisions relating to the litigation brought by Thaler, the decision-makers who denied the AI’s ability to assume ownership of intellectual property rights argued that the same fell to Thaler himself. In this specific case it is stated that the parts produced by Midjourney are excluded from copyright protection.

To reach this conclusion, USCO referred to the method of producing images adopted by Midjourney and to the proportionality of the human contribution in the elaboration of the same images. In this regard, the USCO ruled that Midjourney users, such as the graphic novel writer who initiated the present case, cannot be considered authors of the images because they themselves did not control the tool, nor could they predict advance what the system itself could have created. On this specific point, it could be observed that the USCO has left open a possibility for such recognition, since if for the production of the images a tool was adopted that worked differently from Midjourney, i.e. that its logical path was clear and transparent (and not enclosed in a black box) or if its results were predictable, the human contribution could be more clearly attributed and therefore the dignity of the images produced could be recognized with the attribution of copyright to the part of the product created by the human author.

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