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Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and
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INTRODUCTION
The release of ChatGPT 4, Dall-E, Midjourney, Stable Diffusion, and other generative artificial intelligence (AI) tools initiated a fastexpanding public debate on AI technologies and their societal impacts.1 Since June 2023, the U.S. Senate Judiciary Committee has held ten public hearings on AI developments, covering intellectual property, human rights, regulatory issues, governance and oversight, and deepfakes during political elections.2 Building on past consultations on AI-related intellectual property issues,3 the U.S. Copyright Office and the U.S. Patent and Trademark Office have also conducted public listening sessions and new consultation processes.4 Outside the United States, there have been many notable developments, inclArtificial Intelligence Act (AI Act) in the European Union5 and the Interim Measures for the Management of Generative Artificial Intelligence Services in China6 and the continuous efforts undertaken by the World Intellectual Property Organization (WIPO) at the intersection of intellectual property and AI.7
Thus far, courts and government agencies in the United States, the European Union, and many other jurisdictions have chosen not to extend copyright protection to works autonomously generated by AI systems.8 In the United States, for example, the Copyright Office declined to register Stephen Thaler's artwork "A Recent Entrance to Paradise,"9 Kris Kashtanova's illustrations in the comic book Zarya of the Dawn,10 Jason Allen's award-winning image "Théâtre D'opéra Spatial,"11 and Ankit Sahni's India-based AIgenerated artwork, Suryast.12 Although one could debate theuding the recent adoption of the advisability of these decisions, the decisions were well supported by the Copyright Clause, which empowers Congress to "promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings."13 The 1976 Copyright Act also includes statutory language such as "children," "widow," "grandchildren," and "widower," suggesting that copyright protection is intended for humans, not machines.14
Constitutional arguments aside, one could muster incentivebased arguments...