Beyond Incentives: Copyright in the Age of Algorithmic Production

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NYU Journal of Intellectual Property & Entertainment Law


Generative artificial intelligence (AI) systems disrupt longstanding assumptions about creativity, originality, and copyright law. Traditionally, copyright law is premised on an incentive theory—that monopolistic profits motivate human creators to be creative. The theory predicates that, without such protections, human authors would be disincentivized from creating new works in the face of potential free riders upon their creative labors. This framing presumes creativity arises from a human agent with intrinsic intentionality and experiences. Generative AI posits a challenge to copyright’s anthropocentric premises. Generative AI systems autonomously generate novel artifacts devoid of human intentionality, lived context, or desire for artistic fulfillment. As this technology evolves, the marginal cost of automated production trends toward zero. The resulting oversupply of automated content becomes a perfect substitute for human art in the marketplace. Thus, copyright’s premise of incentivizing artists through profit motives becomes less relevant. Evaluating machine and human works primarily on substitutability or copyright eligibility ignores ontological differences in how creativity arises. If copyright is to continue to presume that humans are exceptional in the realm of creativity, then it follows that moral rights should become the focus of copyright law. Rather than dilute copyright theory to encompass the automated production of new works, we should reinforce protections for intrinsically human virtues—moral rights, like attribution, integrity, and consent. This preserves copyright’s anthropocentrism amidst proliferating machine content. As technology challenges long-held theoretical premises, copyright policy should shift its focus from a sparse and increasingly irrelevant incentive theory to upholding humanistic values against non-human creativity.

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Publication Date

Fall 2023