Copyright Attribution and Reconstruction of Copyrightability Standards for AI-Generated Works in the USA

Yu Xiang,Nie Jianqiang

(Law School,Wuhan University,Wuhan 430072,China)

Abstract: The rapid development of the Artificial Intelligence (AI) industry has been matched by a rise in AIgenerated works.How to assign copyright ownership to AI-generated works is a dilemma that requires an urgent solution.These works can generally be divided into two categories: derivative works and non-derivative works.In the category of derivative works,if those works are the derivative works of an AI program,the programmer should own the copyright.If the works are derivative works of some underlying work provided by the user,the user or the copyright owner of the underlying work should own the copyright.In the category of non-derivative works,for those works generated by AI non-independently,the user of the AI should own the copyright.For works generated by AI independently,these works are not protected by copyright under current US copyright law.But actually,these works meet the requirement of copyrightability,so placing them in the public domain is unreasonable.The copyright could be granted to the owner of the AI,the AI itself,or the corporation that owns the AI.In view of the negative impact of AI-generated work on the copyright market,copyright registration and an annual fee should be established for AI-generated works as the only gate to getting them protected by copyright.In the process of such registration,the new criteria of review could be utilized.

Keywords: artificial intelligence;AI-generated works;copyright;public domain;fictional human author theory

1 Introduction

Artificial intelligence (AI) is a branch of computer science that focuses on creating technology that simulates human behavior and makes decisions on their behalf.Now the question of who owns the copyrights to AI-generated works is controversial in academia.Many scholars have researched the issue from a Chinese legal perspective,but there is no systematic analysis or classification of the ownership of AI-generated works.It is difficult to develop a simple rule because of the varying types of AI-generated works and the many different approaches to dividing authorship.Moreover,with the development of AI,a series of new phenomena have emerged,such as Sofia,a robot who was the first to be granted citizenship,and the great number of works generated solely through AI,which will influence copyright law.These problems need to be solved urgently from a legal perspective;otherwise,human beings will be in chaos for a long time[1].The research will focus on analyzing the differences among certain AI-generated works and suggesting guidelines for a scientific system of assigning copyright ownership from the perspective of the law in the USA.In the last section,the author proposes legal designs to raise the requirement of copyrightability of AI-generated works.

2 Ownership of AI-Generated Works

2.1 Derivative Works

The generated work is a derivative work based on the program if it contains large blocks of expression that clearly copy the expression contained in the program①17 U.S.C.§ 101 (1994)..The Copyright Act defines a "derivative work" as "a work based on pre-existing works,in which a work could be recast,transformed,or adapted②17 U.S.C.101 (2011).".The 1976 Copyright Act clearly indicates that a second work is a derivative work only if it contains expressions from an underlying work.The secondary work is derivative of the underlying work if there is a "substantial similarity" between the two works,such that "an average lay observer would recognize the alleged copy as having been appropriated"③Steinberg v.Columbia Pictures Indus.,663 F.Supp.706,711,3 U.S.P.Q.2d (BNA) 1593,1596 (S.D.N.Y.1987)..So the AI-generated work is not a derivative of the program unless the generated work bears a recognizable similarity to expressions included in the underlying program.

2.1.1 Derivative Works Based on the Program

A cut-and-paste program,such as Softkey's PCPaintbrush ClipArt Library,simply allows the user to "cut-andpaste" images contained in the program into the user's document.Another case is object-oriented programming.Perhaps the most representative example of an objected-oriented program is the use of OOP methods when programming.According to this method,programmers create software subroutines,or "objects",which other programmers use as building blocks to create more complex programs[2].

The main difference between cut-and-paste and OOP is that the user of OOP may exert more creativity in choosing and composing the elements from the original program into the output.The user of an OOP is not just cutting and pasting pictures from the original work onto the output document.The OOP user must provide the functional design or flowchart to achieve an appropriate output program,and that is often the most difficult stage of the programming process.

2.1.2 Programmer Owns the Copyright in This Situation

For a cut-and-paste program,the programmer owns the copyright to the expressions that are contained in the program.Works that are produced by the program and that recognizably incorporate these expressions are derivative works based on the program.So the user should not receive copyright for works generated by the original program because the programmer has the right to own the copyright of derivative works based on the programmer's original material.

2.1.3 Derivative Works Based on the Users' Providing Works

Programs that translate a user's document,such as Google Translate;programs that allow a user to edit pictures provided by the user,such as Adobe Photoshop;or a program that allows a user to edit videos provided by the user,such as Corel Video Studio,would all create derivative works based on the user's input and not the program.In this situation,the original work contributes the most to the generated work,so the copyright does not go to the programmer.Instead,copyright ownership is awarded to either the user or the author of the original work (neither the user nor the programmer).

2.2 Non-Derivative Works

A different question is presented where the output does not include any element of an underlying program.Programs that write poems or compose music may generate works that are not derivative.In this situation,these works could be divided into two categories: those generated by AI with human intervention and those generated solely by AI.

2.2.1 The Works Generated by AI with Human Intervention

Tremblay uses the term "software agency",which is very fitting for these kinds of generative works.In this situation,the AI's actions and output can be traced back to a programmer's controls[3].For this kind of work,where the user has not contributed the minimum level of originality④Feist Publications Inc.v.Rural Tel.Serv.Co.,499 U.S.340,18 U.S.P.Q.2d (BNA) 1275 (1991).,it seems fair to award the copyright to the programmer under current law.However,the author argues it is more appropriate for the user to own the copyright to the output.

2.2.1.1 The Programmer Solely Owns the Copyright

The programmer has undoubtedly contributed most to the originality and creativity of the AI-generated work.The programmer created the software program and generated the necessary coding that will instruct AI.Thus,one might claim that any AI-generated work is produced only through the wisdom of the programmer.So it would be reasonable to award the copyright to the AI-generated work to the programmer.However,as the work was not finally fixed by the programmer,it is uncertain whether the programmer should be granted copyright ownership for any work beyond the original software[4].

The main impediment to the programmer's claim to copyright ownership is the programmer's failure to fix the AIgenerated work in a tangible medium.There is an argument favoring the award of copyright to the user,as the user is the person who directly causes the work to be generated[5].However,this argument was overthrown in theStern Electronics and Williams Electronicvideo game case.In this case,the defendant argued that the programmer did not fix the audiovisual displays because the player's performance partly decided what display appeared on the screen.The court claimed "many aspects of the display remain constant...regardless of how the player operates the controls" and "repetitive sequences of a substantial portion of the sights and sounds of the game" meet the requirement of copyright protection⑤Williams Elecs.,Inc.v.Arctic Int'l,Inc.,685 F.2d 870,874,215 U.S.P.Q.(BNA) 405,408 (2d Cir.1982)..In another case,the court also claimed the programmer fixed the audiovisual displays in the program⑥Midway Mfg.Co.v.Artic Intern.,Inc.,547 F.Supp.999(ND Ill.1982)..

This reasoning applies to any program whose output is fairly repeatable.For instance,if the program composes the same novel every time the user types in "sky" as a title,then it is the programmer,not the user,who fixes the work in a tangible medium.Although it is a fact that the output would not be created without the user's typing,the limited function of the user's role in fixation can be seen by the repeatability of the output.However,the argument fails in cases where the output is different each time the program inputs "sky".Therefore,the programmer can only satisfy the fixation requirement where the output is repetitive or predictable.

In addition to the problem of fixation,there are other reasons for opposing the programmer as the copyright owner.Awarding ownership to the programmer has not been in accordance with the incentive theory for copyright[6].The market already provides programmers with motivation to create programs because they can get sales benefits or licensing royalties from users.If programmers enjoy both the copyright of software and the copyright of AI-generated works,it may lead to a monopoly.This will weaken the motivation for users to utilize AI to generate new works.Another difficulty with granting ownership to the programmers is that they will often be unaware of the existence of such works[6].The user may not notify the programmer and voluntarily pay royalties each time the user utilizes the program to produce another work.In reality,the user is more likely to conceal the output[7].It is difficult for the programmer to make sure that the user uses the software to generate works,copy AI-generated works,or even sell the works.Once the software is utilized by the user,the programmer has to rely on the user's good faith.So the solution is not reasonable.

2.2.1.2 The User Solely Owns the Copyright

The requirement of originality is the main obstacle to the user's claim to copyright protection,even though the requirement of originality is low.To be copyrightable,a work only needs to be original to the author and possess some minimal degree of creativity⑦Feist Publications Inc.v.Rural Tel.Serv.Co.,499 U.S.340,345,18 U.S.P.Q.2d (BNA) 1275,1278 (1991)..To be sure,the requirement for creativity for the user is very low;even a slight amount will satisfy.However,while the standard is low,it is not nonexistent.Kalin Hristov argues that users make a minimal contribution to AI-generated works,and their claims for copyright ownership are the least convincing[8].For example,when a user utilizes an AI program to compose a poem,the user will not meet the originality requirement by just typing in "start","poem" or clicking a button.Actually,the user makes no important contribution to the composition or arrangement.This limited contribution cannot meet the requirement for creativity.

Even though the user makes little contribution to the production,assigning the copyright to the user is more meaningful from the perspective of social policy and economic incentives.The user is the one who decides whether AI-generated work is produced,so the interests of the users comply with the public's interests because the user decides the quantities and quality of articles that enter the market.The programmer has less aspiration to generate more AI-generated works as his or her program is already assigned copyright protection.If considering incentivizing the production of more excellent works,it is better to grant copyright protection to the user,who is more likely to take part in generating works than the programmer.In the production of news,a user usually plays a larger role in pushing AI-generated news to the public than an AI developer,as the user decides what news articles are worthy of publication.However,from the perspective of traditional copyright rules,it will be hard for a user to gain a copyright because he has contributed very little to the AI-generated work.The simple behavior of pressing a button will not meet the requirement of creativity as established in Feist[9].

A problem exists because the party that can obtain the copyright is not the party that benefits from the policy of copyright.It may be unreasonable to decide that an individual's contribution leads to copyright protection for another person.But this will be logical if the programmer has a transfer agreement regarding copyright ownership with the user.The programmer could give the copyright of AI-generated works to the user in the license agreement of such AI software.

2.2.1.3 Joint Authorship

The Copyright Act defines a "joint work" as "a work completed by two or more authors with the consciousness that their contributions be merged into indivisible parts of an integrated whole⑧17 U.S.C.§ 101 (1994).".Parts of a unitary whole are "interdependent" when they have some meaning standing alone but achieve their primary significance due to their common effect⑨Childress v.Taylor,945 F.2d 500,505,20 U.S.P.Q.2d (BNA) 1191,1194(2d Cir.1991)..There is a dispute about whether each joint author's contribution should be copyrightable or whether the individual contributions do not need to be copyrightable⑩Erickson v.Trinity Theatre,Inc.,13 F.3d 1061,1071,29U.S.P.Q.2d (BNA) 1347,1354 (7th Cir.1994)..Professor Nimmer claims that the contributions of each author need not be copyrighted11MELVILLE B.NIMMER,NIMMER ON COPYRIGHT § 6.07,at 6-23 (1996)..However,the majority of courts support Professor Goldstein's opinion that each contribution should rise to the level of copyright12PAUL GOLDSTEIN,COPYRIGHT: PRINCIPLES,LAW,AND PRACTICE § 4.2,at 1.2 (1989)..The main reason that Nimmer's view has not been adopted by the courts is that the Goldstein model strikes a balance between copyright law and contract law by allowing any person to entrust another with authorship status by contract and by not allowing parties to utilize contract law to transform uncopyrightable matter into copyrightable matter13Erickson,13 F.3d at 1071,29 U.S.P.Q.2d (BNA) at 1354..

This aspect means that to be considered joint authors,both the programmer and the user must satisfy the two requirements of Section 102.For the first requirement,each individual's contribution should be independently copyrightable.But in fact,the user's contribution of button pressing or typing is too simple to be copyrightable,as pressing a button or typing a word is unlikely to meet the requirement of minimum creativity from the perspective of the law.Another important requirement of joint authorship is the intent that each joint author has when each joint author begins their creation.On the second aspect,it is difficult to claim that the user collaborates with the programmer for the same intention at the beginning,as the parties who will later use the program were not ensured when the program was created.So the requirement for joint work is unlikely to be satisfied14Cmty.for Creative Non-Violence v.Reid,490 U.S.730,731-32 (1989)..Even though assigning joint authorship might seem like a good solution,it is in fact an impossible approach.

2.2.1.4 AIs as Joint Authors

Because a joint author must intend to contribute to a unitary whole,an AI may only be a joint author if it has independent consciousness,the ability to "intend".However AIs do not possess true intentionality in the current technical situation.Lawrence B.Solum claims that even if computers learn to simulate intentionality,they will never truly have intentionality because they have no grasp of "meaning" to do things and are always programmed[10].Perhaps it would change their minds if AIs could possess free,independent will in the future.But now,it seems fair to say robots lack the intentionality required to be classified as joint authors.

2.2.2 AI Creates Works Independently

As AI becomes more advanced,it can learn and create independently without human intervention.AI like Google Magenta uses a simulated "human brain" of neural networks to compose music without the aid of specific algorithms or human input[11],and IBM's Watson was used to edit a movie trailer by analyzing a completed film for thematic highlights and splicing them together to foreshadow the longer story[12].

If the person controlling the AI can reasonably expect the AI to create a certain product or if the AI is programmed to generate works,then the AI-generated works are produced with human intervention.However,if the AI's actions are outside that range of expectation and are automatically generated,or if it goes rogue,just as one cannot predict the random music created by wind chimes[13],then the products are generated by AI independently.

In fact,under current law,the work generated by AI independently cannot be protected by law.It seems that placing the work in the public domain is the current solution.However the author argues that placing them in the public domain will undermine the copyright industry,so it is not a suitable approach.Since humans do not contribute to the works generated by AI independently,granting copyright ownership to humans under traditional legal theory is unreasonable.So assigning this kind of work is a problem;it is necessary for people to explore new theories and solutions to solve the problem.

2.2.2.1 Place the Work into the Public Domain

A good solution would be for all these works to enter the public domain immediately.Some scholars hold this view.Placing all AI-generated works in the public domain would enhance the public's interest in getting access to those creative works without undermining incentives for content producers[14].The public domain provides a path that helps expand creativity and encourages human creators to create more works.

The author disagrees with the arguments above.The paper argues that giving copyright protection to AI-generated works is necessary when works are completed without human intervention.In fact,placing the works into the public domain will undermine the copyright system and have a serious negative impact on the culture industry.

Firstly,without a period of protection for independently AI-generated works,there is no incentive for users to generate more work by using AI,which will weaken their desire to purchase AI because these works will bring them no value.If users choose not to purchase this software,profits from AI developers will greatly drop,which may decrease a developer's desire and financial power to continue creating and improving their AIs.On the one hand,programmers and companies have invested large amounts of time and money into the creation of AI;on the other hand,few users choose to purchase the AI.This phenomenon could finally curb innovation by discouraging developers and companies from investing in the AI industry.As a result of the declining AI industry,there would be less material available for use in teaching,scholarship,and research under the Copyright Act's fair-use doctrine1517 U.S.C.§ 107..The arts,education,literature,and technology,among others,could suffer significantly.Now many AI machines are utilized by the developer to serve businesses,such asDreamwriter[15],an AI that is developed by the company Tencent in China and could produce a large number of articles of news in a short period of time.Tencent itself is also the user;the interest of Tencent would be seriously damaged if these articles could not be protected by copyright,which would inhibit Tencent's enthusiasm for investing in the AI industry,so protecting works generated by AI independently is necessary.

Secondly,putting the works in the public domain may undermine the culture industry and copyright system in the future.A considerable part of the creation of works in literature and art may be monopolized by AI because it is capable of mass production.If these works are not given copyright protection,there will be a great many "works" that are not copyrighted and are not substantially different from the general works created by humans.At this time,for any potential users,if there are enough artificial intelligence creations in the public domain,there is no need to pay for the use of copyrighted works.Thus,the copyright value of all other human works may tend toward an infinitely zero value.Most human authors will exit the market,with the exception of those who have a strong desire to express themselves or do not expect compensation.The copyright industry will gradually dry up.Copyright licensing and transaction volume will plummet.When human works lose market appeal and mobility,the economic incentives of creation will also disappear.Ultimately,the interests of neighboring rights holders will be seriously damaged,such as publishers,audio and video producers,broadcasters,and so on.

Thirdly,placing the works in the public domain has difficulty in execution.If copyright protection is given to works that are generated by AI independently,people must distinguish these works from AI-generated works that have a human contribution.In reality,it is difficult to distinguish these two.It demands a detailed investigation into the essence of the interaction between the user and the AI and an accurate understanding of the functioning of the AI program.For example,in the case ofPenguin Books U.S.A.,Inc.v.New Christian Church of Full Endeavor,Ltd.16Penguin Books U.S.A.,Inc.v.New Christian Church of Full Endeavor,Ltd.,No.96 Civ.4126,2000 U.S.Dist.LEXIS 10394.,the courts were required to determine whether the works actually do originate from a spirit voice other than the human intermediary-a decision that courts have struggled to avoid in these cases17U.S.COPYRIGHT OFFICE,COMPENDIUM OF U.S.COPYRIGHT OFFICE PRACTICES§ 313.2..

2.2.2.2 AI as Copyright Owner

Whether an AI should be seen as the author of a copyrightable work is one of the most difficult problems in copyright law today[16].Since only the authors of creative works may enjoy legal protection1817 U.S.C.§ 201(a).,some scholars have argued that the definition of "authorship" should be redefined to include both human and non-human authors.Professor Ryan Abbott is one of the scholars who claim legal rights for non-human authors.In his paper,he argues that awarding copyright ownership to non-humans is an effective way to encourage further development in AI[17].In theory,this could prevent AI-generated works from falling into the public domain.This theoretical solution,however,is controversial and may give rise to an uncertain future full of legal challenges.An AI is not a natural person and cannot be held legally responsible in court19Naruto v.Slater,2016 U.S.Dist.Lexis 11041 (N.D.Cal.Jan.23,2016)..So they may not be considered authors according to guidelines set by the U.S.Copyright Office20U.S.COPYRIGHT OFFICE,COMPENDIUM OF U.S.COPYRIGHT OFFICE PRACTICES§306 (3rd ed.2014)..

Moreover,when considering whether to award copyright ownership to an AI,the Copyright Office and the courts must consider if such ownership will not encourage the AI to generate more works because AI has no independent consciousness to generate more works in current technical conditions.Moreover,AI has no awareness of how to enforce its copyright.Redefining copyright ownership to include non-human authors would undermine the current legal system in the USA,creating further uncertainty about legal problems such as AI's tort liability.As a result,the scientific solution would require both stability in the legal system and incentives for AI developers.

2.2.2.3 Work Made for Hire

According to the doctrine,"if a work is made for hire,an employer is considered the author even if an employee actually created the work." The employer can be a firm,an organization,or an individual21U.S.Copyright Office,Circular 9: Works Made for Hire (Sep.2012)..These principles on granting copyright ownership to a party that did not directly produce a copyrightable work are suitable for solving the problems presented by AI.The employee-employer relationship in the "made for hire" doctrine may be applied to AI programs and their developers if the terms "employer" and "employee" are reinterpreted within the confines of the doctrine.

From the perspective of current law,the traditional definition of an employee may be restrictive as a person usually below the executive level who is hired by another to perform a service,especially for wages or salary,and is under the other's control.After the case of Goldstein v.California,the terms have been expanded.Just as the term "author"may be interpreted as different entities (an individual,a firm,or an organization),the term "writings" could mean books,sound recordings,films,images,and even computer code.So the meaning of employer and employee should be expanded in order to satisfy such newly arising requirements and reflect contemporary social changes22Goldstein v.California,412 U.S.546 (1973),2 Fla.St.U.L.Rev.614 (1974)..A more flexible definition could also be utilized to accommodate the current legal limitations of AI-generated works.

Furthermore,if a relative interpretation is used,an AI machine may be thought of as an employee,as its services are employed by its programmer or owner.This new interpretation of two terms (employer and employee) in the "made for hire" doctrine could be vital for the development of AI in the future by providing the incentive of copyright protection to AI developers.Annemarie Bridy argues that the "work made for hire" doctrine is a more suitable solution.The solution solves the problem of assigning authorship because it is an effective mechanism for directly vesting copyright ownership in a legal person who is not the author-in-fact of the work[18].Russ Pearlman also claims that the "made for hire" doctrine is a practical method,as it can avoid the confusion of treating an AI as a legal or natural person under the law[19].

As Kalin Hristov argues,the theory of work for hire has some advantages.The most distinct merit of the theory is that copyrights are attributed to a legal or natural person instead of a non-human,eliminating a puzzling debate over the legality of non-human authorship,which will not shake the traditional civil law system[20].But there is a fatal disadvantage to the theory.It is hard to give a definition of a legal,contractual,or agency relationship between a human and a machine.But the human employee or agent has legal rights and duties by signing an agreement with his or her employer.The AI "employee" cannot be in accordance with a real agreement for employment,nor can the AI claim its legal rights or undertake duties.Also,this solution is an abuse of the original legal meaning of "work made for hire".From the perspective of the law,the author of the "work made for hire" is a human.The requirement is affirmed in CONTU's rejection to even "speculate" upon the computer-authored written works23FINAL REPORT OF THE NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS,July 31,1978,at 42..In the broad sense,if people broaden the law to cover man-AI "work for hire",this distortion would also mean recognizing other man-machine and man-animal agreements.The concept of a person "hiring" his parrot to "author" a soundtrack distorts the sphere of copyright protection far beyond its original,legally enforceable boundaries24A.CORBIN,CORBIN ON CONTRACTS §§ 8,9,99,100,624.(17th printing 1975)..So this theory still does not comply with existing legal requirements.

2.2.2.4 The Fictional Human Author Theory

One alternative solution for protecting the copyright of works generated solely by AIs is to set a natural person or legal person that has a close relationship with AIs and award the copyright to the person.The representative solution is the Fictional Human Author Theory.Under this theory,when a court finds that a work of AI is "generated" solely by the AI rather than a human,the court should presume the existence of a fictional human author and assign the copyright to the owner of the AI[20].Under this theory,owners of AIs should be awarded copyrights to works that are generated solely by AI,even if they are not the "creators" of the work.In reality,the Copyright Office's registration forThe Policeman's Beard is Half Constructedappears to follow the Fictional Human Author Theory.In the registration,the Copyright Office recognized an AI named Racter as the fictional human author in fact but awarded ownership of the copyright to a human,William Chamberlain,the owner of the AI25RACTER,THE POLICEMAN'S BEARD IS HALF CONSTRUCTED (1984)(Copyright Registration No.TX-1-454-063,computer generated prose and poetry)..

The theory has many advantages.Firstly,by presuming the existence of a human author,a court could ensure that copyright ownership is awarded to a human.It maintains the traditional law system that copyright ownership should not be assigned to non-humans26U.S.COPYRIGHT OFFICE,COMPENDIUM OF U.S.COPYRIGHT OFFICE PRACTICES § 306 (3rd ed.2014)..As Timothy L.Butler argues,courts would not have a debate over philosophical questions about the concept of "thinking machines" and their legal rights and duties[20].Secondly,contractual problems associated with work made-for-hire theory are avoided because the party assigning rights is "human" and another party is also human.Thirdly,copyright protection would be available under this solution and would thus be in accordance with the goals of copyright.Furthermore,economic incentives would be available under the theory.Awarding the rights to the owners will give them more incentive to use the AI program and produce new works.It will also encourage the owner to purchase more AI programs from the programmer or the company,which will stimulate the development of the AI.Evan H.Farr argues that the fictional human author theory fails to mention who will initiate the related litigation and enforce the copyright[21].The author claims the owner of the AI is suitable for initiating litigation and enforcing the rights.

2.2.2.5 AI Who Has the Citizenship

With the rapid development of AI technology,AI with the qualification of citizenship emerged.For example,the Robot "Sophia" was granted citizenship in Saudi Arabia.The author argues that more and more AIs may also have nationality and citizenship rights in the future.

2.2.2.5.1 The Dilemma of Granting Copyright to AI Who Has Citizenship

From the historical process of the scope of civil subjects,the system of civil subjects is constantly evolving and equipped with inclusiveness.The process of obtaining slavery rights in human history,the legal person system created by legislation along with economic and social development,and the protection of animal rights with the view that personhood and dignity should be granted to non-human animals in recent years[22]have proved that the civil subject is not a closed system,that conforms to social development.In the same way,when the creative action of AI has a great influence on human society,it will invariably be endowed with such status in law.In addition,the EU intends to affirm the legal status of intelligent AI by means of a "fictional electronic person",with relevant legislative proposals having been formally put forward[23].

If an AI has nationality and citizenship,it seems that the AI has the qualifications to own the copyright.However,the aim of copyright law is to "promote the progress of science and useful arts"27U.S.CONST.art.I,§ 8,cl.8..Even if the AI has nationality and citizenship,the Copyright Office and the courts must consider whether such a copyright will encourage the AI to generate works for society's benefit.Now,awarding the copyright to AI fails to realize the goal of copyright law because AI has no independent awareness and does not know how to enforce its rights.

2.2.2.5.2 The Guardianship Rights of the Owner of AI

This author believes that guardianship rights in civil law can be used to treat artificial intelligence as citizens whose intelligence is not yet fully mature.AI could be guarded by the personal owner.Guardianship is the guardian's right to supervise and protect the personal rights of protected persons,such as minors,people with mental illness,or people with developmental disabilities.The guardian has the responsibility to make major decisions about the health and well-being of the ward.The guardian could make financial decisions utilizing the assets and estate of the protected person.The machine seal named Paro obtained Japanese household registration as a pet in 2010,and the inventor's identity on the household registration card is "father"[24].This is an inspiration for establishing a robot-oriented guardianship system.

In the author's view,in the future,AI will be granted citizenship and be bestowed civil rights around the world.At this time,the relationship between AI and individual owners can be drafted as a guardianship relationship.That is,the AI owns copyright,but property rights in copyright are guarded by the owner.In order to best protect the AI's legal rights,the law may stipulate that the guardian shall bear a duty of care.If the guardian fails to perform his duties of guardianship or infringes on the legal rights of the AI,the guardian shall bear responsibility;if the guardian causes any loss of property for the AI,the guardian shall compensate for the loss.Guardianship,involving copyright litigation,may be enforced by the owner.The guardian cannot dispose of the property of the AI at will.When an AI causes damage to others and needs to bear the liability for compensation,the guardian can use the AI property to pay compensation.This paper argues that a liability insurance system for guarded AI should be established.Through the compulsory insurance system,the guardian will insure the AI that is being supervised,thus helping to solve the possible infringement problem of AI[10].

2.2.2.5.3 The Corporation Owns the Copyright of AI's Output

As discussed above,personal owners can serve as guardians.But for those corporations that use many AIs,it is not suitable for corporations to serve as guardians because the cost of too many AIs may be too high for the company.The author claimsthe theory of works for hirecan be used in this situation.Under the theory,corporations that own an AI possess the copyright to works created solely by an AI citizen.Why is the theory of work for hire appropriate in this case? Because AI already has citizenship and has the same legal qualifications as humans,it is reasonable to regard it as an employee.The contractual employment or agency relationship between a human and an AI complies with the law.The author also argues that there should be a liability insurance system for the AI employed by corporations in this situation,just like employers insure their human employees.

3 Reconstruction of Copyrightability Standards of AI-Generated Works

From the perspective of the Copyright Law,it mainly realizes its economic function by prospering the cultural market.Granting copyright is a critical motivation for authors to create more works.

However,if AI with "high-yield characteristics" is not regulated,its creations will undoubtedly have a huge impact on traditional copyrights from the supply side,which will lead to confusion in the originally limited marketplace.The works of AI will inevitably reduce the market pricing power of human authors,resulting from their low operating costs and abundant creative resources.The price of AI-generated works may be very cheap.This may bring huge competitive pressure to human copyright owners,which may ultimately lead to a shrinking of the whole copyright industry.The Intellectual Property Promotion Plan 2016made by the Japanese government has performed a good analysis of the problem.It points out that the creation of AI may lead to a sharp increase in the number of copyrightable works.Also,giving intellectual property protection to works made by AIs could lead to too much protection,so it is also important to give intellectual property protection to AI creations with a certain market value to stop people from "free-riding"[25].Thus,it is necessary to set new standards for the copyrightability of AI-generated works.

3.1 Review about Value Orientation

According to the principle that intellectual property rights should be given to resources with rare attributes,the author believes that the standard of copyrighted works for AI should be higher than the standard of human creation by considering the characteristics of "high yield" for AI-generated works.So the minimum requirement as stated in the copyright law cannot be used as a criterion for the copyrightability of AI-generated works.AI-generated works of low quality cannot be protected by copyright.The AI-generated works of high quality can compete with the works created by humans,which is conducive to the formation of a "defense embankment" that eliminates the negative impact of AI on the human works.

Now AI can compile news by collecting and judging the latest event information.But it turns out that most AI pays little attention to the technical characteristics of news writing.For example,the AI program named Wordsmith can mass-produce financial and economic reports[26].Although it can generate different versions of articles with diverse styles,the content is simple and boring.It must be pointed out clearly that articles should be in pursuit of social value.It means that articles are not only a true description of facts but also emphasize the factor of social value orientation.For instance,reports on natural disasters should focus more on heroic deeds,disaster prevention,and response while ensuring the accuracy of the damage suffered by the disaster areas.Such reviews about social value put forward higher requirements for AI.

3.2 Review about Promoting the Progress of Science and Art

The research states the second requirement for the copyrightability of AI-generated works is enhancing the progress of science and art,which is also prescribed in the copyright law28United Stated Constitution 1787,Article I,Section 8,Clause 8..Now,works created by human beings do not require a minimum artistic aesthetic but merely minimal creativity.For example,if a student in junior high writes a poem about his mother's life,it is protected by the Copyright Law despite its lack of literary value,as the creation of works is mainly a factual behavior and does not require too much for the value of the art.But if AI writes poems,the work must contain a certain artistic or literary value.If the poems written by AI are a simple combination of words or even include many linguistic errors,then from the perspective of artistic value,these poems should not be awarded copyright.Therefore,the author claims that the copyrighted property of AI-generated works must be identified with the goal of promoting the progress of science and art,as with current copyright law.

As discussed above,the research proposes that it is necessary to improve the access standard for AI-generated works protected by the Copyright Law.The standards could be whether the value orientation of AI-generated works is beneficial to society and whether the work promotes the progress of science and artistic development.

3.3 Registration and Paying an Annual Fee

In order to be reviewed,the author argues that AI-generated works must be registered in order to obtain copyright.The author should also pay an annual fee for registration to maintain the copyright.There are three advantages.Firstly,the copyright registration system can clarify the rights of holders of AI-generated works.The copyright registration system can make the attribution of copyright more distinct,especially in the digital environment when vast numbers of pieces flood the market.Secondly,registration and paying an annual fee can help to review the works,which may effectively limit the copyrights of many low-quality products so that the total number of works created by humans and AIgenerated works is relatively balanced.This measure can avoid a monopoly in the copyright market due to the quantitative advantage an AI possesses.

Thirdly,a registration policy could filter out those works with limited commercial value.Under traditional copyright law,a work can be granted copyright almost automatically without the requirement for an extra act.But in some circumstances,authors may object to granting copyright to their works in the digital age.For example,many authors in post-bar may publish their short articles online to express their opinions,with no intent to gain a copyright license fee.They just want to distribute their works online freely and do not need the motivation of copyright to continue.In fact,in the digital market,many websites earn their primary income through the web traffic generated by their work.So for many authors,free circulation of their works is more important than strict copyright protection.Paying a copyright fee for their works may decrease network traffic to their works,which is not an outcome that authors wish to see.

For registration,there would be direct costs,such as the payment of an annual fee.There may also be indirect costs,such as attorney fees.An author will analyze the costs that must be invested and the profits that may be gained as a result of registration.From a rational perspective,if the profits outweigh the costs,then the author will register the work.This is a cost-benefit analysis and will encourage the author to consider how to commercialize works to gain the greatest benefit after registration,which is in accordance with the aim of copyright law because copyright law gives a commercial motivation to create.If no economic benefit was related to creating the work,there is no meaning behind the granting of copyright,which could exclude a considerable portion of AI-generated works from copyright protection.

4 Conclusion

Over the last few decades,AI has become more advanced.The emergence of a large number of AI-generated works and AI with citizenship has a new impact on copyright law.There are many kinds of AI-generated works,so assigning copyright ownership is a complex thing that requires categorical discussion.To eliminate the negative impact on the human copyright market,the author proposes setting the copyright registration and paying the annual fee as the necessary approach for AI-generated works to gain copyright protection.The research also argues that new criteria for review should be established in registration to filter out works of low quality.The new criteria determine whether the value orientation of AI-generated works is beneficial to society and whether the works promote the progress of science and artistic development.