Friday, June 28, 2013

9. Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators
Koko: A Talking Gorilla
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Expected Audience: anyone curious about animals, AI, extraterrestrials and copyright

This week, Doug speaks to Neal Smith, author of "Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators."

mp3 audio | ogg audio | torrent | video

Per usual, the sparse show notes are after the break.

  1. Why don’t you tell us a bit about yourself?

Neal Smith

law librarian at Western New England University (School of Law)

He was the notes editor for IDEA this year.

  1. I want to leave plenty of time for questions, so I don’t want to get into too much detail about the paper at this time, but why don’t you give us a brief synopsis of the paper?

Title of Paper
Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators

creative works by non-human creators
there was a story that went viral in 2011
other forms of protection can work

  1. Could you speak a little about animal welfare vs. animal rights and does it matter for things like right of publicity?

animal welfare is about protecting animals

animal rights takes it a step further
Animal welfare says we should protect Koko the Gorilla
Animal rights might appoint a guardian

  1. You don’t talk at all about trade secrets? Why not?

Process or method
trade secrets might be the way to go with AI

  1. Why are nonhuman creations not the subject of trademark or patents? It seems like AI or intelligent extraterrestrials could fulfill the requirements for either.

strong AI presents the same problems as intelligent extraterrestrials

  1. Is the argument on the patent front, that an animal could invent something, but it could not fulfill the disclosure requirements?

Just not useful creations

  1. You say “These cases together indicate [copyrightable] if the author makes any sort of decision about the outcome of the final product that involves more than the mechanical implementation of a standard method or template.  Works by animals can meet this threshold, while current machine-generated works and works of nature cannot.” You answer this generally in the paper, but more specifically, what would it take for a machine-generated work to meet this threshold?

The issue is to meet the originality requirement. “modicrum of creativity” See Feist.
more than randomness and more than wrote mechanical method

machine creation might include randomness, which means that it isn’t copyrightable

  1. Doesn’t the Shakespeare analogy break down because a gorilla eats a lot (and thus costs a lot) and Shakespeare is long dead? A dead gorilla cannot create.

Gorilla to paint needs food to keep it alive and materials to let paint.
The real incentive is for the humans.

novelty is an issue of source and copyright is not about protecting source
trademark is about protecting source

  1. How does any of this relate to the Public Domain and/or Creative Commons?

Creative Commons: doesn’t directly apply to CC, because CC depends on copyright
Public Domain: Right on point! Right now these works are in the public domain by default

Mike Masnick got a takedown notice for posting images of the work in question.

  1. What are you planning next in your research and writing endeavors?

Going in two different directions
1. Orphan/hostage works (is it really a problem?)
2. Copyright preemption and licensing agreements
this is particularly important for libraries
a California case involving UCLA in 2012
language limiting fair use might be preempted

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