Document Type

Article

Publication Date

1-1-2021

Source Publication

First published in: 52(1) Ottawa Law Review 33-86 (2021)

Abstract

Much of the recent literature on AI and authorship asks whether an increasing sophistication and independence of generative code should cause us to rethink embedded assumptions about the meaning of authorship. It is often suggested that recognizing the authored — and so copyrightable — nature of AI-generated works may require a less profound doctrinal leap than has historically been assumed. In this essay, we argue that the threshold for authorship does not depend on the evolution or state of the art in AI or robotics. Rather, the very notion of AI-authorship rests on a category mistake: it is an error about the ontology of authorship.

Building on the established critique of the romantic author, we contend that the death of the romantic author also and equally entails the death of the AI author. Claims of AI authorship depend on a romanticized conception of both authorship and AI, and simply do not make sense in terms of the realities of the world in which the problem exists. Those realities should push us past bare doctrinal or utilitarian considerations about what an author must do. Instead, they demand an ontological consideration of what an author must be. Drawing on insights from literary and political theory, we offer an account of authorship that is fundamentally relational: authorship is a dialogic and communicative act that is inherently social, with the cultivation of selfhood and social relations being the entire point of the practice. This discussion reorientates debates about copyright’s subsistence in AI-generated works; but it also transcends copyright law, going to the normative core of how law should — and should not — think about robots and AI, and their role in human relations.

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