“Creative” machines are already here. There are composition programs that write original music, data analysis programs that produce original news reports, and artistic robots that create original paintings. Leave the composition program running after breakfast, and you’ll have 5,000 chorales by lunch. Immediately after the last NFL game of the week, the analysis program will prepare 300 unique football reports and recaps for you per second. The painting robot can even mix its own paints and wash its own brushes.
But what about fiction? David Cope, the music professor who created Emmy, the composition program that can create 5,000 original music pieces in a morning, says in an email, “I believe that without a doubt computer programs will write novels. Even great novels. It seems to me that we would be selling human creativity short if we didn’t believe that to be true.” That represents quite an endorsement of human ingenuity: We are creative enough to make machines that can relieve us of the need to be creative. However, Joe Procopio of Automated Insights, which provided Yahoo Sports with more than 50 million fantasy football recaps and reports during the 2012 NFL season, takes a more guarded view. “I’m very skeptical of the possibility of machines being able to generate viable fiction in the near term,” he cautions in an email before adding, “But I’m sure it can be done.”
Whenever Novel Writer 1.0 is successfully programmed, its creator may be in for a shock: U.S. intellectual property law doesn’t anticipate nonhuman authors. Although the word author is never defined in U.S. copyright statutory law, numerous provisions demonstrate the term only encompasses human beings. As far as U.S. law is concerned, machines aren’t authors.
So far, this has not been an issue. Companies like Automated Insights create content that is time-sensitive; there is no long-term financial value in a news report as there is in a popular book. Similarly, while Emmy has produced and sold classical music albums, the monetary value is limited. That will not be the case if a computer writes the next Harry Potter: best-selling books that inspire movies and merchandise.
Let’s say a human programmer creates software that writes a lot of novels, which she then e-publishes. One has a punchy, reader-friendly title like Super Potter Brothers and the Hungry Vampire Games. Despite the title, the content is entirely original. Millions of people pay to download the book. It becomes an overnight sensation. Film studios offer the programmer seven-figure deals. A fan fiction writer e-publishes a story he wrote using the main characters, a vegan vampire who runs a butcher shop and a werewolf who turns into a plumber at full moon. His book sells millions of downloads, too.
Did the fan fiction writer do anything prohibited by law? Not necessarily. As U.S. copyright law anticipates only human authors, it is reasonable to read it as providing no copyright protection to authors that are not human. The fan fiction writer can use the Super Potter Brothers characters as much as he wants; they’re in the public domain. Anyone can use them and make money from them, including the movie studios.
This is consistent with the original constitutional purpose of intellectual property laws, “to promote the Progress of Science and useful Arts.” Human authors can take years to write an original work of fiction; we promote that activity by giving them a short-term monopoly to reap the financial benefits of their hard work. Software that can create thousands of original novels in a week does not require the same incentives.
And while we want to incentivize the human programmer’s efforts to create a novel-writing computer, she doesn’t need the same rewards as a human writer. Both the human author and programmer may spend years working on their book and software, but the software will provide the programmer with thousands of books, not just one. When computer-written novels appear, it would be better to grant the human programmer a limited monopoly — say 10 years, instead of the enormous copyright protection given to a human writer, the life of the author plus 70 years.
But should we even protect human authors for that long? The United States originally granted authors up to 28 years of copyright protection, but that timetable has been growing ever since. And it has resulted in the gradual death of the public domain. This has impacts small (no free downloads of Return of the King) and great (out-of-date reading textbooks). As robots continue to create original content, permitting it to enter the public domain quickly will foster its creative use by artists and help schools as well. Although this does not solve excessive copyright protections, it will help prevent the problem from getting worse in the future.