The current notion that either the AI or SI enabled creative work should not be the subject of copyrightability appears to be fundamentally flawed. Advocacy should address and test this apparent flaw. The evolution of the law in this regard would appear to hold open numerous possibilities for advancement particularly as we migrate from AI to SI. Of course, it is possible to advocate for non-copyrightability as well, but the better philosophically-based position would appear to be more anticipatory of SI and hence copyrightability. Preclusion of copyrightability because AI or SI is not human on the one hand and preclusion of AI or SI as a tool of a human on the other hand appears to be legalistically untenable.
Comparably, denying the human actor controlling AI or SI ownership because AI or SI was involved appears to be legalistically myopic and the basis for active advocacy from several angles. The law will naturally evolve with the advent of more SI attributes and lawyers need to be prepared to address such evolution as it is occurring.
As AI and SI both oftentimes train on (and in the process reproduce or scrape) pre-existing content protected by copyright, questions of fair use will continue to arise. Clearly, wholesale reproduction in the commercial contest will continue to be analyzed as infringing activities. Output-level infringement will also involve some fair use analysis as well. Clearly, the sheer volume of activity associated with AI and SI will mean that lawyers will be required to engage in another level of analytics as the law evolves in this area and as the volume of likely putatively infringing activity occurs.
