tod ANDRES GUADAMUZ and also to make legal arguments based on data inputs.” Some algorithms are also drafting patent applications,** and even haye been used to pre-empt state of the art in future inventions.# Allof these are often ground-breaking and innovative areas of research, but they tend to bea very specialist area of study that generally eludes the mainstream. Even the most popular works that propose some form of legal adoption of artificial in- telligence in the legal profession’ can often be received with mild scepticism about the true reach of the potential for change." A growing area of interest is the interface between copyright and artificial intel- ligence.”” There is a common element in most of the examples of machine learning that have been described in the previous section, namely that we have machines that are starting to generate truly creative works, prompting us to review our understanding of originality. Intellectual property is specifically directed towards the protection of the fruits of the human mind, and these works are given a set of limited ownership rights allocated to persons, both natural and legal.*8 Because of the personal nature of this type of protection, there is no such thing as non-human intellectual property rights. Copyright law clearly defines the author of a work as ‘the person who created it Despite some recent legal disputes regarding monkeys and photographs,” it is highly unlikely that we will witness any deviation away from personhood as a requirement for ownership, and nor will we witness any sort of allocation of rights towards machines and animals, However, works like The Next Rembrandt could challenge what we generally consider to be original, which is one of the require- ments for copyright protection.*! Is the mechanistic data analysis of dozens of portraits enough to warrant protection? Is there originality in the composition of ® Martin Modina, Jure 2, Learning Applied to Law" # Ben Kattenbach an Intelligence’ (2015) 41 This isa project called ‘All Prior Art, which a algorithmically create and publicly publish all possible new prior art, making it impossible for future inventions to be registered, See All Prior Art . © See, eg, Richard E Susskind and Daniel Susskind. the Wark of Human Experts (Oxford Universit a 46 erp QC (The October 2015) . See Ana Ramalho, ‘Will Robots Rule the (Artistic) World? A Proposed Model for the Legal Status of Creations by Artificial Intelligence Systems’ (2017) Ginsburg and Luke Ali Budiardjo, ‘Authors and Machines’ (2019) © Edwin C Hettinger, Justifying Intellectual Property’ (1989) + Copyright, Designs and Patents Act 1988, s 9(1) %© Andrés Guadamuz, ‘The Monkey Selfie: Copyright Lessons for Originality in Photographs and Internet Jurisdiction’ Internet Policy Review 3 Andreas Rahmatian, ‘Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine under Pressure’ (2013) 44 TIC 4 (hereafter Rahmatian, ‘Originality in UK Copyright Law’). vor Bench-Capon, and Ivan Bratko, ‘Argument Based Machine420 BENJAMIN SOBEL ‘These standards diminished considerably in the mid-1900s. Today, the prevailing test in the US requires only a ‘minimal degree of creativity'2! As Peter Jaszi can- nily observes, an expansive conception of copyright ‘offers no sound basis for dis- tinguishing between oil paintings, art reproductions, motion pictures, lamp bases, poems, and inflatable plastic Santa Clauses.”” In comparison to the US, continental Europe's originality requirements are more exacting. However, Europe has relaxed its standards in recent years, Before the harmonization of European copyright law, some jurisdictions imposed strin- gent originality standards. Austria, eg, required that a copyrightable photograph differ substantially from pre-existing photographs.” The standard promulgated by the European Court of Justice ‘is widely seen as an effort to forge a compromise between the more stringent rules previously in force in many continental coun- tries and the more relaxed approach previously in force in Ireland and the United Kingdom™ Thus, while copyright today may not protect rote drudgery, it will at- tach to most other fixations of mundane expression. 2.1.3 New fixation technologies The third trend is the proliferation of technologies that fix in tangible form ex- pression that would have gone unrecorded in previous eras. Typically, copyright regimes require protected works to be ‘fixed:?> Today, it is easier than ever to re- cord, store, and transmit large amounts of text, images, video, and audio. These technologies mediate and memorialize interpersonal interactions. Instructions to employees might be fixed in emails instead of announced verbally, flirtatious con- versation might take place on a dating app instead of in a bar, and friends might share jokes and skits as videos sent to a group messaging thread. Expressive inter- actions that were heretofore unfixed are now fixed, Under most copyright regimes, media like this will be both sufficiently original and sufficiently fixed to receive full copyright protections. As Joseph Miller wrote in 2009, ‘technological change is as much a part of copyright’s conquest of daily life as any legal rule. Low-cost computers (with word processing, e-mail, photo, music, drawing, and browsing applications) linked to a global, high-speed communications network routinely transform us into gushing copyright and infringement fountains.”* If the lowering 2 eist Publications, Ine. v Rural Tel. Serv. Co. Laps (1991). ® Peter Jaszi, “Toward a Theory of Copyzigl morphoses of “Authorship”” (1991) 1991 Duke Law Journal 455, 485. 2 Roman Heidinger, “The Threshold of Originality under EU Copyright Law’ (Co-Reach Intellectual Property Rights in the New Media, Hong Kong, 20 October 2011); cited in Fisher, ‘Recalibrating Originality (1119) 439. 2 Fisher, ‘Recalibrating Originality’ (a 19) 443. 35 17 USC § 102(a)s Copyright, Designs and Patents Act 1988, s 3(2); Berne Convention for the Protection of Literary and Artistic Works, Art 2(2) * Joseph Scott Miller "Hoisting Originality’ (2009)31 Cardozo Law Review 451/459