The article, based on Prof. Ginsburg’s Melville B. Nimmer Memorial Lecture, is here; the Introduction:
Much American copyright rhetoric vaunts technological progress and economic incentives. One reading of the constitutional copyright clause characterizes copyright as a necessary (if unappealing) encouragement to the advancement of innovation. These emphases tend to obscure the centrality of human creativity to copyright law and theory.
In this article, provocatively titled “Humanist Copyright,” I develop a counter-narrative. I seek to highlight the role of human authorship in the copyright scheme. The title references not only current debates over AI-generated outputs but also the proposition that authors’ rights embody and advance human achievement. Copyright celebrates human creativity, for multiple reasons, economic and social, but also grounded in the person of the author. I trace these concepts to Italian Renaissance humanism and the emergence of the author as entrepreneur.
My exploration of the role of authorship proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position of the Copyright Office and the courts that the output of an AI system will not be a “work of authorship” unless human participation has determinatively caused the creation of the output.
The phrase “humanist copyright” nods to Italian Renaissance philosophers such as Giovanni Pico della Mirandola, whose 1485 Oration on the Dignity of Man emphasized human autonomy in a human-centered universe. Pico declared that “we have been born into this condition of being what we choose to be”; man stands “at the very center of the world … as the free and proud shaper of [his] own being, to fashion [him]self in the form [he] may prefer.” While Pico emphasized self-determination in shaping individual lives, the kinship between the authorship of one’s being and the authorship of works of art and literature is apparent. Concepts of creative autonomy took root and flowered in 16th-century Italy, as Giorgio Vasari’s Lives of the Artists attests. My counter-account of copyright thus begins in 16th-century Rome and focuses on one protagonist in the development of authorial rights.
And this is also a reminder that we publish material related to free speech generally, not just the First Amendment. This includes many kinds of articles related to copyright law, which “the Framers intended … to be the engine of free expression” (and which is at the same time a speech restriction), as well as articles about trade secret law, trademark law, common-law rules related to libel, state statutory protections for speech, and a wide range of other speech restrictions and protections.
