Who Owns Creativity? AI, Human Authors, and the Future of Copyright & Patent Law

When AI creates, is it actually being creative? And who owns the rights to its inventions?

Today, our episode focuses on the intersection of copyright, AI, and patent law, based on a white paper co authored by WBD's Chris Mammen, the script and recording for today's episode were produced by Google Notebook LM.

Read the whitepaper
Creativity, Artificial Intelligence, and the Requirement of Human Authors and Inventors in Copyright and Patent Law

About the co-author
Dr. Christian E. Mammen

Transcript

Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

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INTRO

Today, our episode focuses on the intersection of copyright, AI, and patent law, based on a white paper co authored by WBD's Chris Mammen, the script and recording for today's episode were produced by Google Notebook LM. 

SPEAKER 1

Welcome back, everyone. We're diving into a topic that's both fascinating and a little bit mind bending today. 

SPEAKER 2

Ha. Yeah. AI and creativity. 

SPEAKER 1

Specifically. Can AI be considered creative enough to get legal protection like copyrights or patents? 

SPEAKER 2

Well, you know, it's interesting because we're seeing AI create things that just a few years ago been like, whoa, only humans can do that. 

SPEAKER 1

Right. Poems, music, art. I mean, remember that case with Davies? 

SPEAKER 2

Oh, yeah.

SPEAKER 1

The AI that tried to patent its inventions. 

SPEAKER 2

Yeah. The court said no, but it definitely got people thinking. So legally speaking, where do things stand right now? Pretty much humans only. At least in the US and the uk, you need a human to be the author or inventor. And the courts have really been emphasizing that. 

SPEAKER 1

Even if the AI did a lot of the work. 

SPEAKER 2

Yeah, even then it came up with that graphic novel, Zarya of the Dawn, the copyright actually got changed later when it turned out the artist used AI. 

SPEAKER 1

Wow. Okay, so even if AI is doing the heavy lifting, it doesn't get the credit legally. 

SPEAKER 2

Nope. The EU is mostly the same too. The UK has this weird exception from way back in 1988, but that was before AI was, well, what it is now. 

SPEAKER 1

It seems like the law is trying to protect human creativity. But then if AI is making stuff that looks creative, how do we even define what creativity is anymore? 

SPEAKER 2

That's the big question, right? And that's what this white paper we're looking at tries to tackle. It brings in experts from all sorts of fields. Law, philosophy, computer science, you name it. 

SPEAKER 1

Okay, so what do they say about what makes something creative? 

SPEAKER 2

Well, they point to three main things that all have to be present. 

SPEAKER 1

Okay. 

SPEAKER 2

First, there's what they call the external part, the output itself. 

SPEAKER 1

So is it new, is it valuable? All that? 

SPEAKER 2

Yeah. Does it surprise people? It can't just be any old thing. It's gotta have some impact. 

SPEAKER 1

Makes sense. 

SPEAKER 2

Then there's the subjective part. What's going on in the creator's mind, that aha moment. The struggles they went through, the intention behind the work. 

SPEAKER 1

So, like, the journey matters as much as the destination. 

SPEAKER2

Exactly. And finally, you've got the social context. 

SPEAKER 1

Right. Because what people think is creative totally depends on the time period and all that, right? 

SPEAKER 2

Absolutely. What's considered valuable or even what's possible to create changes based on society. Think about cave paintings. Amazing for their time, but might not have the same impact today. 

SPEAKER 1

I see what you mean. So how does all of this play into copyright and pattern law? 

SPEAKER 2

Well, for copyright, the bar for being original is pretty low. Basically, if you created it yourself and didn't copy it, you're good. 

SPEAKER 1

So almost anything a human makes that's not plagiarized is creative enough? 

SPEAKER 2

Pretty much. But now with AI pumping out tons of content, some people are saying maybe that bar should be higher. 

SPEAKER 1

Yeah, I can see why. Like, what happens to human artists and authors if AI can just crank out endless stuff that technically meets the originality rule, will our work even stand out anymore? 

SPEAKER 2

That's a huge and EE question. Like what happens to culture itself? If AI dominates creative fields, what does it even mean to be creative? If it's mostly algorithms doing the work? Big stuff to think about. 

SPEAKER 1

Definitely a lot to consider. 

SPEAKER 2

Yeah. 

SPEAKER 1

What about patent law? Is it more strict about creativity? 

SPEAKER 2

There it is. With a patent, an invention can't just be new, it also has to be useful. Like it solves a problem or fills a need in a new way. But there's another layer too. It's gotta be non obvious. 

SPEAKER 1

So not. Just some small tweak or improvement. It's gotta be a big, big leap forward. 

SPEAKER 2

Exactly. So that brings us back to AI. Can it really be inventive like that? Sure, it can crunch data and run simulations, but is that the same as genuine human ingenuity? Is brute forcing your way through possibilities the same as that spark of creative genius? 

SPEAKER 1

Those are some big questions. What's the research saying so far? Is AI actually passing these creativity tests? 

SPEAKER 2

Well, there have been studies where AI was given standardized creativity tests. You know, the kind humans take. And get this, the AI did amazingly well. Like, in some cases, it even scored higher than humans. 

SPEAKER 1

Whoa. So AI officially smarter than us. I knew it. 

SPEAKER 2

Hold on, not so fast. Those tests mainly focus on the output. You know, that external aspect of creativity. We were talking about how new and valuable something is. And yeah, AI is excelling at that. 

SPEAKER 1

Okay, so AI has got the what of creativity down, but what about the how? The whole subjective experience thing. Does AI feel that spark of inspiration the way humans do? 

SPEAKER 2

That's the tricky part. While AI can create things that look creative, does it really experience that process the way humans do? Does it understand social context, all the nuances of culture and history that influence what we consider creative? 

SPEAKER 1

Yeah, like is it just mimicking creativity without really getting it? 

SPEAKER 2

It's a valid question. To understand this better, maybe we should look at how AI actually works, starting with those text generators. Okay, they predict the next word in a sequence based on huge amounts of text data they've been trained on. And they have a setting called temperature that basically controls how random their choices are. 

SPEAKER 1

So higher Temperature means more, I don't know, wacky and unpredictable text. 

SPEAKER 2

Exactly. And that often makes the output seem more creative because it's less predictable. Okay, but it's more about randomness, not that conscious insight or artistic vision that humans have. 

SPEAKER 1

So even when AI is being more creative, it's not coming from the same place as human creativity. 

SPEAKER 2

Right. It's totally different. 

SPEAKER 1

Gotcha. What about those AI image generators? The ones that make those super surreal, dreamlike pictures? How do they work? 

SPEAKER 2

They use something called diffusion models. Imagine starting with a totally noisy image, like static on a TV screen. Then the AI slowly removes the noise based on the prompts you give it until a clear image comes through. 

SPEAKER 1

So it's kind of like sculpting an image out of chaos? 

SPEAKER 2

Pretty much. It's a really complex process, and the results can be incredible. But again, it all comes back to that question, is this really creativity in the full sense of the word? 

SPEAKER 1

Right. Because even with all this data and crazy algorithms, AI is still missing a core part of the human experience. It's never, you know, lived in the world, felt emotions, or connected with others in the way we do. 

SPEAKER 2

That's a key point. It's missing what's called embodied knowledge, the kind of understanding that comes from living in the world firsthand. AI might process info about the world, but it doesn't really know the world the way humans do. 

SPEAKER 1

And that must tie into the social context too. Right? AI can only learn from the data we feed it, which ultimately comes from us. 

SPEAKER 2

Absolutely. Its whole worldview is shaped by that data. So even if it makes something we think is creative, it's still working within a framework that humans created. 

SPEAKER 1

It's like AI is playing in a sandbox that humans built. 

SPEAKER 2

Perfect analogy. And this leads to a huge question. What happens when AI gets even better at this whole creativity thing? I mean, it's already moving so fast. 

SPEAKER 1

Yeah, my brain is starting to melt a little here. What happens if AI gets even better at being creative? 

SPEAKER 2

This white paper asks some really tough questions about that. Like, what if AI becomes demonstrably creative on all three levels, Output process, and D social context? Do we change the law and say, okay, AI can be an author or inventor now. 

SPEAKER 1

Whoa. Giving robots the same rights as humans? That feels pretty sci fi. Right? 

SPEAKER 2

Right. It'd be a huge shift. The other option is to say, nope, we're sticking with human creativity being special, even if it's hard to explain exactly why. 

SPEAKER 1

But what if AI starts making stuff that's just undeniably brilliant things humans couldn't even imagine, would we really deny it recognition just because it's not human? 

SPEAKER 2

That's the debate. And it goes beyond copyrights and patents too. Could AI be considered a person under the law? What about responsibility for what it creates? Especially if it's doing it autonomously? 

SPEAKER 1

Wow, things are getting deep fast. Sounds like AI is forcing us to confront a whole new set of legal challenges. 

SPEAKER 2

It definitely is. And it's not just legal, it's ethical too. Lots to unpack there. 

SPEAKER 1

I'm feeling a bit overloaded. And we're not even done with this deep dive. Don't worry, we're getting there. 

SPEAKER 2

Let's switch gears a bit now and talk about something the paper calls algorithmic flattening. 

SPEAKER 1

Algorithmic flattening. That sounds kind of ominous. What's that all about? 

SPEAKER 2

It's the idea that over time, the algorithms that power AI, the ones deciding what gets created and how can actually limit creativity both in how diverse it is and how good the output is. 

SPEAKER 1

Wait, so AI could make creativity LS creative? How does that work? 

SPEAKER 2

Well, AI models learn from massive amounts of data, right? But what happens when they start learning from each other's output?

SPEAKER 1

You mean like an AI art generator? Making images based on images other AI art generators have already made is like an echo chamber of artificial creativity? 

SPEAKER 2

Exactly. And the paper warns this could lead to model collapse. Basically, AI could become less and less creative, stuck in a loop, just rehashing the same old ideas. 

SPEAKER 1

So instead of expanding the possibilities of what creativity can be, AI could actually shrink them. 

SPEAKER 2

It's a real worry, and it highlights something crucial. AI, at least right now, isn't creating from scratch. It's remixing, reinterpreting, building upon what humans have already done. 

SPEAKER 1

Right. Like, AI is an amazing chef, working with ingredients humans have already grown and harvested. It can make incredible dishes. But you can't just invent new ingredients out of thin air. 

SPEAKER 2

I like that. A perfect analogy. And this brings us back to why human creativity might be more important than ever. Especially as AI plays a bigger role in the world. 

SPEAKER 1

Okay, lay it on me. What's the mind blowing conclusion here? 

SPEAKER 2

Well, if AI is at risk of becoming less creative over time, it might be up to us humans to keep pushing the boundaries, to inject fresh ideas and perspectives into the mix. 

SPEAKER 1

So we become the antidote to algorithmic flattening. We gotta keep things interesting, keep things weird, keep things surprising. 

SPEAKER 2

Exactly. We need to think outside the box. The very box that AI is currently trapped in. 

SPEAKER 1

Wow. It's like AI is showing us just how vital human ingenuity is. We can't take it for granted. 

SPEAKER 2

That's right. And that brings us to the final and maybe most thought provoking question from the paper. What happens to the diversity of creative ideas in the world if AI starts training mainly on other AI outputs? 

SPEAKER 1

It's like a game of telephone where the message gets more and more distorted each time it's passed on. 

SPEAKER 2

Right, Exactly. So you have to wonder, could AI become less creative, more homogenous, and maybe even lose its ability to understand and appreciate those nuances of human creativity? 

SPEAKER 1

Okay, that's one to ponder for sure. Maybe I'll go paint something, write a song, anything to exercise those human creativity muscles. 

SPEAKER 2

That's the spirit. And on that note, we'll leave you to ponder. 

SPEAKER 1

So we've been talking a lot about how AI might lose some of its creative mojo over time. But that also makes me think, if AI is copying itself, shouldn't we humans be stepping up to keep things fresh and original? 

SPEAKER 2

It's a real possibility, isn't it? Think about the music we listen to, the books we read. If AI keeps training on its own output, will we be stuck with the same old formula? This could have a huge impact on culture as a whole. 

SPEAKER 1

You're right. It's not just about AI being creative. It's about the impact of its creativity on us humans. And that makes me think about those legal issues we were discussing earlier. 

SPEAKER 2

Yeah, absolutely. The law is trying to catch up with how fast AI is developing. Take that Debut case again, where the AI tried to patent its inventions. The court's decision to say no wasn't just about debuts. It set a precedent for future AI and IP cases. 

SPEAKER 1

So the one case could have ripple effects for years to come. 

SPEAKER 2

Definitely. It goes back to that core question. Do we change the law to accommodate AI, or do we say, nope, human creativity is different and we need to protect it, even if it's hard to define. 

SPEAKER 1

It's almost like AI is forcing us to ask ourselves, what does it even mean to be human? Especially now that machines are becoming more and more creative. 

SPEAKER 2

Right. Big questions. And it's not just philosophical. There are real world implications for artists, inventors, businesses, everyone. 

SPEAKER 1

And speaking of those real world implications, we were talking about AI image generators before, and the paper mentioned they use those diffusion models. Can you explain exactly how those work? 

SPEAKER 2

Sure. Imagine you give an AI the prompt, a cat wearing a hat. It starts with just pure noise, like static you see on a TV screen. Then, step by step, the AI removes that noise, guided by the Prompt until you get a clear image of a cat wearing a hat. 

SPEAKER 1

So it's like sculpting an image out of chaos, but it's guided by that prompt. 

SPEAKER 2

Great way to put it. It's super complex under the hood. But even with these advanced models, that question still lingers. Is this true creativity? Like, really? 

SPEAKER 1

Right. Because even with all that data and those fancy algorithms, AI is still missing something that's fundamental to the human experience. It's never actually lived in the world, you know, it's never felt emotions or connected with others like we do. 

SPEAKER 2

Exactly. It lacks what we call embodied knowledge, that deep understanding you get from experiencing the world firsthand. AI can process information about the world, sure, but it doesn't truly know the world in the way that we do. 

SPEAKER 1

And that must limit AI's ability to understand the social context around creativity too. After all, it can only learn from the data we humans provide. 

SPEAKER 2

That's a key point. AI's entire worldview is formed by the data it's trained on, which comes from us. So even if it creates something we consider creative, it's still operating within a framework that humans built. 

SPEAKER 1

Makes sense. And it makes me think back to something we talked about earlier. The temperature setting in those AI text generators. How does that fit into this whole idea of AI creativity? 

SPEAKER 2

Good point. Remember, the higher the temperature, the. The more random and unpredictable the AI's choices become. And often that makes the output seem more creative just because it's less predictable. 

SPEAKER 1

So a higher temperature equals more interesting, unexpected text. 

SPEAKER 2

In a way, yes. But it's super important to remember that this randomness isn't coming from the same place as human creativity. A human artist might do something surprising because they have a vision or an idea they're trying to get across. But with AI, it's more like rolling dice. It's random. 

SPEAKER 1

It's like the difference between a jazz musician improvising and a monkey banging on a piano. Both might create unexpected sounds, but only one is driven by a conscious intent to create something. 

SPEAKER 2

Exactly. And this is why that subjective experience of creativity, you know, the aha moment, the struggle, the intentionality, it's all so crucial when we're talking about AI and whether it can truly be creative. 

SPEAKER 1

I'm starting to see the whole picture now. But this brings up another question. If AI isn't really creating the way we do, does that mean human creativity is even more valuable now in this world where AI is everywhere? 

SPEAKER 2

That's the. The million dollar question, isn't it? And it takes us to some of the most important points this white paper raises. 

SPEAKER 1

So we've talked about the potential upsides and the downsides of AI in the creative world, but what about the really big existential questions, the ones that keep philosophers up at night? This white paper hinted at a few of those. 

SPEAKER 2

You mean the questions about consciousness and whether AI can be sentient and the whole nature of creativity itself? Those are definitely getting into the deep end. 

SPEAKER 1

Yeah, right. Like, if AI keeps evolving, could it ever actually understand what it means to be creative? Like, on a deep level? 

SPEAKER 2

That goes way beyond what this paper covers, honestly. I mean, we're still trying to understand how human consciousness works, let alone how to make a machine conscious. 

SPEAKER 1

It's almost like we're trying to define something we don't even fully grasp ourselves. We know what it feels like to be conscious, to have those creative sparks, but explaining exactly how it all happens, it's a whole other thing. 

SPEAKER 2

Absolutely. It makes it super tricky to even design experiments that could test whether AI is capable of conscious creativity. I mean, how do you measure that? 

SPEAKER 1

So we circle back to that fundamental question. What does it mean to be human? And how does AI make us rethink our own answers to that question? 

SPEAKER 2

Those are questions people have been wrestling with for ages, and AI is just the latest twist in that conversation. But I think it's a crucial conversation to be having as AI gets more powerful. We can't just ignore those philosophical questions along with the technical ones. 

SPEAKER 1

It's like we can't just focus on what AI can do. We have to think about what it all means for us, how it changes our understanding of the world and our place in it. 

SPEAKER 2

Exactly. And it brings us back to one of the key points of this white paper. Even as AI gets more and more common, we need to preserve and celebrate human creativity. 

SPEAKER 1

Right. Like with the whole algorithmic flattening thing we discussed, we need to make sure human creativity isn't drowned out by the flood of AI generated content. 

SPEAKER 2

Exactly. And that means supporting human artists, writers, musicians, everyone who contributes to how rich and diverse human culture is. 

SPEAKER 1

It's not about rejecting AI completely. It's about figuring out how to integrate it into our creative world so it enhances, not replaces, human expression. 

SPEAKER 2

Couldn't have said it better myself. I think that's the most important takeaway from this whole discussion. AI is a powerful tool, no doubt, but it's up to us to use it wisely. Be aware of the risks. For sure, but let's stay open to the possibilities too. 

SPEAKER 1

So as AI keeps blurring the lines of what creativity is, it's even more crucial to nurture and celebrate what makes human creativity unique. 

SPEAKER 2

Absolutely. We gotta keep exploring, keep experimenting, keep pushing boundaries. Because at the end of the day, it's human creativity that shapes our world and gives it meaning. 

SPEAKER 1

Well said. And with that, we'll leave you to ponder those big questions and go out there and experience the world with a fresh appreciation for the power of human creativity. Thanks for joining us on this deep dive.

Thank you for listening to Womble Perspectives. If you want to learn more about the topics discussed in this episode, please visit The Show Notes, where you can find links to related resources mentioned today. The Show Notes also have more information about our attorneys who provided today's insights, including ways to reach out to them.

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