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To Whom Does the World Belong? | Boston Review

The allocation of the IP in what AI produces is pretty much zero-sum: one party’s loss is another’s gain. These are the conditions for a messy fight, which will be adjudicated in the first instance by judges and later, most likely, by lawmakers. There will be claims and counterclaims in the meantime; companies and individuals will try and secure authorship using contracts, terms of use, and the other usual tactics. But in the long run, when an economically significant question arises that is not foreseen by any current law, it tends to be resolved only by new law.

This law should avoid basing itself on a fundamental misconception that has dogged thinking about authorship and ownership in the modern era. Intellectual property law does not, in truth, exist to defend natural rights that individuals hold over their works. This isn’t how IP law came to be, when it was first developed as an extension of guild regulation in eighteenth-century England. Nor is it how it is legally justified in the United States, whose Constitution’s first article grants to Congress the power to make laws “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” As the first subclause makes clear, the purpose of copyrights and patents is to incentivize authors and inventors by promising them a set of time-limited rights, akin to a temporary monopoly, over the dissemination of their works.

In other words, copyright and patent ownership are instrumental rather than intrinsic goods. The intrinsic good that IP law was established to serve is the widespread availability of inventions and works of art, and in the majority of cases it is clear—whatever the armies of lawyers employed by corporations with vast holdings of copyrights and patents might argue—that this intrinsic good is best served by those works being in the public domain, as free as the air for common use.

In fact, as a mass of historical scholarship has shown, the conceit that copyright law was ever a recognition of a natural right was generated and sustained above all by the nineteenth-century Romantic cult of authorship, itself a rearguard action in an epoch when writers threw off patronage for a new market system, becoming literary workers for the first time, directly dependent for their livelihood on the products of their labor. Straining to preserve their prestige in an era where the need to sell their works on a marketplace seemed to put it in doubt, writers invented the modern idea of author–ownership, at a stroke redefining themselves as property-owning bourgeois and throwing the sociopolitical stakes of intellectual property law into a mystified confusion from which it has never recovered.

If AI’s ability to generate works of art and to spark progress in science does nothing else, it detonates once and for all the Romantic myth of authorship as a special, organic, spiritual connection between “artist” and “work” that confers a privileged claim to authority over the way human creations circulate and are used. Roland Barthes may have been too early in proclaiming the death of the author in 1967. Now that LLMs can produce haikus and sonnets by the thousand—and may soon be able to do the same for novels and photographs and who knows what else—he may at last be vindicated. It would be worse than ironic to allow the inventors of the technology that has dealt a death blow to the era of Romantic authorship to use its very ideological apparatus—the identification of “authoring” with “owning”—to reap the spoils of what comes next.

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There is another reason to be wary of retrospective redistribution as the answer to AI’s economic consequences. A century’s experience teaches us that intellectual property law has tended to operate like a ratchet. Since the emergence of international copyright with the Berne Convention of 1886, successive revisions to the global copyright regime have only ever moved in the direction of stronger protections for rightsholders: longer terms, stricter conditions on use, expansions of the amount of protected material. In the current era, which began with the ratification of the TRIPS agreement in the mid-1990s, international copyright and patent protection for “creators” and “inventors”—or more typically the corporations to whom creations and inventions accrue—is stronger than ever. It is precisely this historically unprecedented regime that powerful interests will call upon to divide up the economic spoils of AI.

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