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  • Writer's pictureJeremy Rutman

AI-generated inventions and other monkey business

Guess who took this selfie?

Can an AI create a patentable invention? Can a monkey hold a copyright? All this and more in today's blog.

The crested macaque above caused a stir after using some photo equipment belonging to British photographer David Slater.

This photograph and others are 'self-portraits' taken by monkeys: Slater set up a camera on a tripod that could be triggered by the monkeys, who were fascinated by their reflections in the lens. The primates were given a remote cable release to play with, allowing them to trigger the camera while Slater fended off other monkeys.

Slater and a guide followed the monkeys for three days, gaining their trust. But during attempts to get photographs of the monkeys, He found that they loved playing with his camera and gear, but also kept trying to run off with the camera. "I wanted a close-up image but I couldn't do it. They were too nervous, so I had to get them [the monkeys] to come to the camera without me being there and get them to play with the release, which they did". By setting the camera on a tripod with a large wide-angle lens, Slater optimized the chances of getting a facial close up, using predictive autofocus, motor drive, and a flashgun.

That was the amusing part - now comes the interesting part.

Slater has argued that the photos are 'his' - that he has the copyright on this photo and others like it. Wikimedia used the pics and refused to remove them from the Wikimedia Commons, based on the argument that a copyright is held by the creator of a work, and therefore the copyright would be held by the moneys, but since they are non-human creators they are not legal persons and therefore cannot hold copyright - thus the images are in the public domain.

Techdirt, Wikimedia Commons, and now the illustrious Rutman IP have hosted the images following their publication in newspapers over Slater's objections that he holds the copyright, and People for the Ethical Treatment of Animals (PETA), who have argued that the macaques should be assigned the copyright.

In 2014, the United States Copyright Office stated that works created by a non-human are not copyrightable, and a number of legal experts have argued that Slater's role in the process may have been sufficient to establish copyright for him.

PETA then tried to use the monkey selfies to establish a legal precedent that animals should be declared copyright holders. After Slater published a book containing the monkey pics, PETA sued, requesting that a monkey be assigned the copyright and that PETA be appointed to administer proceeds from the photos. The court dismissed the case and ruled that a monkey cannot own copyright, under US law. PETA appealed, and the photographer agreed to a settlement in which Slater would donate a portion of revenues on the photographs to wildlife organizations. However, the court of appeals declined to dismiss the appeal and declined to overturn the lower court judgment, affirming that animals cannot legally hold copyrights.

If 'lower animals' can't hold IP rights, what about the AI overlords to come?

As we saw with the monkey business, only a human can be an inventor under U.S. law.

But the Artificial Inventor Project, run by University of Surrey Law Professor Ryan Abbott is trying to get a computer listed as an inventor. Working with 'Imagination Engines Inc.' they have come up with a machine whose main purpose was to invent patents. Rulings in South Africa and Australia have allowed the patents, listed the AI as inventor , albeit the Australian patent office is appealing.

The AI inventor in this case is a “creativity machine” called DABUS that invented a beverage container and a “device for attracting enhanced attention”, which might be a self-reference for all we know. Abbott filed applications in 17 jurisdictions around the world listing DABUS as the inventor.

Predictably, the USPTO tossed the case for failure to list a person as inventor, and Thaler appealed. The USPTO in the meantime gathered input from a range of companies and individuals on how to address AI both as invention and inventor.

After gathering opinions, the US Patent and Trademark Office said that the consensus is that artificial intelligence isn’t advanced (yet) to the point where it could be an inventor. This may soon change...

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