Jonathan Lovvorn: Welcome everyone to the panel. I'm very excited to be moderating on this particular issue. Thank you to the Berkman Klein Center, the Harvard Student Animal Legal Defense Fund, the Harvard Animal Law & Policy Program for making this possible. It's great to see such a big turnout on this issue at the intersection of animal law and technology innovation.

When we talk about animal law, of times we start by talking about the dualistic nature of the common law, and the fact that the law divides everything under the sun into persons and things, and the latter category including property. We do this so much that most laws and regulations don't even bother to stop and talk about who they apply to. So we have statutes, constitutional provisions, that confer benefits and rights but totally omit any discussion of who's included.

This problem is being challenged on two fronts. So, that duality doesn't fit so well with two different lines of development. The first is the scientific knowledge and expansion every day about animal sentience, animal intelligence, animal agency, animal creativity that takes animals to a place that doesn't fit very well within this dualistic framework of persons and things.

The second place is the advancement of computer technology and artificial intelligence, which also tests the boundary of this traditional divide between persons and things.

So the case we're going to talk about today is going to be a jumping-off point for that larger discussion about how we deal with the other, and how we deal with things that have attributes of persons and are held outside the class of persons. And we're going to use the monkey selfie case as a jumping-off point. And I'm going to introduce our panelists really quick, and then we'll do an overview of the case, and then have a cross discussion and then open it up to all of your questions, and I'm sure that you have a lot.

Our first panelist on my left is Jeff Kerr, who's been general counsel to People for Ethical Treatment of Animals and the PETA Foundation for twenty-five years. Jeff is one of the most knowledgeable and well-known experts in animal law in the entire world. We're extremely fortunate to have him here. He built and now leads the largest animal rights-focused legal shop in the United States. His cases like the monkey selfie case have advanced scholarship and popular discussion about animal rights considerably. His legal team was also just awarded Best Legal Shop in 2017 by Corporate Counsel Magazine. So I'm personally very happy to have Jeff here because I've known him for many years and it's great to get a chance to catch up.

We also have Kendra Albert, who's a Clinical Fellow at the Cyberlaw Clinic and the Berkman Klein Center for Internet & Society. Kendra's a 2016 Harvard Law School graduate. Her work on Internet and copyright issues has been published in Green Bag, the Harvard Law Review, and Wired. Before law school, Kendra worked as a research associate at the Berkman Klein Center for Internet & Society and also worked at Public Citizen, Electronic [Frontier] Foundation, and Cloudflare. Welcome to the panel.

On my right we have professor Christopher Bavitz, Managing Director of Harvard Law School Cyberlaw Clinic, which is based in the Berkman Klein Center. He also co-teaches the Counseling and Legal Strategy in the Digital Age seminar as well as the Music & Digital Media seminar. His practice focuses on intellectual property, media law, entertainment, music, technology. Prior to joining the Clinic, Chris served as Senior Director of Legal Affairs for EMI Music North America.

Finally we have Tiffany Li, who's an attorney and Resident Fellow at Yale Law School's Information Society Project. She leads the Wikimedia/Yale Law School Initiative on Intermediaries and Information. She's an expert on privacy, intellectual property, and law and policy at the forefront of new technology innovations. She's also an Affiliate Scholar at the Princeton Center for Information Technology and has been honored with Transatlantic Digital Debates fellowship, a fellowship on information policy from the International Association of Privacy Professionals, and is a Fellow and Founding Member of the Internet Law and Policy Foundry.

So welcome all of you. I think at this point we'll turn it over to Jeff to give us an overview of the case. And then we'll have some discussion.

Jeff Kerr: Good after­noon every­one. John, thank you very much for the intro­duc­tion. It is just a thrill to be here, and this won­der­ful turnout, we’re all very grate­ful for your time. As Jon men­tioned, I am going to give a brief intro­duc­tion. I do want to thank Kate Barnekow and the SALDF for invit­ing me here. And I hope you all enjoy this very much.

I had to chuck­le a lit­tle bit while I was wait­ing for today’s pre­sen­ta­tion. I saw this pub­li­ca­tion, Our Bicentennial Crisis—I think you’ve all prob­a­bly seen it. I was struck by…in it the author was talk­ing about how pre­scient Harvard was in the late 1990s by cre­at­ing the Berkman Center, notwith­stand­ing the fact that at least one judge had argued that the con­cept of cyber­law’ would be as use­ful as the con­cept of horse law.’ ” So, the irony is not lost on me. We’re here to talk about cyber­law and also mon­key law in this case, but close enough.

I want to talk to you just briefly to give you an overview to frame the case, to frame the mon­key self­ie case, so that we have a con­text. And we start with the ques­tion of what is copy­rightable? This is a self­ie pho­to­graph of one of my col­leagues in the legal depart­ment. Clearly a copy­rightable pho­to­graph, and in case you had any ques­tion about that, that’s the cer­tifi­cate of copy­right reg­is­tra­tion for that pho­to­graph.

Now, we go to the Copyright Act, and copy­right applies to orig­i­nal works of author­ship fixed in a tan­gi­ble medi­um of expres­sion, now or lat­er devel­oped.” That’s the basic def­i­n­i­tion that we’re deal­ing with.

And orig­i­nal” means lit­tle more than a pro­hi­bi­tion of actu­al copy­ing.” So it’s a very, very, very low bar.

And as a gen­er­al rule, the author” (that’s the legal term used for who cre­ates a copy­rightable work), the author is the par­ty who actu­al­ly cre­ates [it].” And there­fore copy­right own­er­ship vests ini­tial­ly in the author or authors of the work.”

And then cor­re­spond­ing­ly, the legal or ben­e­fi­cial own­er of the exclu­sive right under the copy­right is enti­tled” to sue to pro­tect it.

This is the star of our show. This is the famous mon­key self­ie pho­to­graph. And this is Naruto. He is now a 9 year-old crest­ed macaque who lives on the island of Sulawesi in Indonesia. They’re called crest­ed macaques— You can’t see it as well in his self­ie, but it’s because of the Mohawk-like crest of hair on the top of their heads.

And let me tell you a lit­tle bit about Naruto and the macaques. They are crit­i­cal­ly endan­gered and their total pop­u­la­tion is now esti­mat­ed to be between four and six thou­sand. And their num­bers have decreased approx­i­mate­ly 90% over the last twenty-five years due to pop­u­la­tion encroach­ment, and being hunt­ed for bush meat.

They are high­ly intel­li­gent and capa­ble of advanced rea­son­ing. Like us, they’re vision-dominant. They have stereo­scop­ic vision. They see in col­or. And so any­thing that has their image in it or the pro­jec­tion image or is a visu­al stim­u­lus to them is incred­i­bly inter­est­ing. They also have grasp­ing hands just like you and I do. They have oppos­able thumbs. They have fin­ger­nails. And they are able to do incred­i­bly dex­ter­ous actions with their hands, includ­ing one of their most impor­tant social groom­ing traits is to pick very small insects off of one anoth­er.

Now, Naruto and his oth­er macaques eat by for­ag­ing. And so they are reg­u­lar­ly encoun­ter­ing humans, whether in the near­by vil­lage that’s next to the pre­serve where they live, or to peo­ple com­ing into the pre­serve. It’s heav­i­ly tourist­ed area. So they reg­u­lar­ly encounter pho­tog­ra­phers, whether tourist pho­tog­ra­phers or pro­fes­sion­al pho­tog­ra­phers, Naruto and his fel­low macaques have grown up around and very used to video cam­eras, big television-type cam­eras, all the way down to our cell phones. And they’re used to being around them and being used with­out endan­ger­ing them­selves or harm­ing them.

Now, let’s rewind to 2011 when a pho­tog­ra­ph­er named David Slater was in Indonesia and he was fol­low­ing the macaques for sev­er­al days. And he stopped to rest and put down his cam­eras. And Naruto, then 3 years old, came up and picked up one of his cam­eras and start­ed look­ing at it. And he made the con­nec­tion… By Mr. Slater’s own admis­sion he made the con­nec­tion between push­ing the shut­ter release but­ton and the change to his reflec­tion in the lens when the aper­ture opened and closed.

“[M]acaque smiles at itself whilst press­ing the shut­ter but­ton on a cam­era.”

[M]acaque pulls one of sev­er­al fun­ny faces dur­ing its own pho­to shoot, seem­ing­ly aware of its own reflec­tion … sug­gest­ing to me some form of fun and artis­tic exper­i­ment with its own appear­ance.”

Posing to take its own pho­to­graph, unwor­ried by its own reflec­tion, smil­ing. Surely a sign of self-awareness?”
[pre­sen­ta­tion slide]

And so the quotes I have here, these are Mr. Slater’s quotes from the book of pho­tographs he pub­lished that con­tain the mon­key self­ies. So these are Mr. Slater’s own words about the self-awareness, the sophis­ti­ca­tion, and the inten­tion­al­i­ty and pur­pose­ful­ness of what Naruto was doing in tak­ing the pho­tographs.

“… not just high­ly intel­li­gent but … also aware of them­selves … It was just a mat­ter of time before one pressed the shut­ter result­ing in a pho­to of [him]self. [H]e stared at [him]self with a new found appre­ci­a­tion and made fun­ny faces – in silence – just a we do when look­ing in a mir­ror.”
[pre­sen­ta­tion slide]

And again. I think it’s just so impor­tant to under­stand this. This and the oth­er pho­tographs that Naruto took were entire­ly and exclu­sive­ly inten­tion­al, pur­pose­ful acts. And it was kind of funny—as an aside, some of the pho­tographs were of the sky, they were out of focus, par­tial­ly he was in the frame. Sounds a lot like prob­a­bly all of our vaca­tion pho­tographs as well. So the sim­i­lar­i­ties con­tin­ue.

“[H]e also, impor­tant­ly, made relaxed eye con­tact with [him]self, even smil­ing … [H]e was cer­tain­ly excit­ed at [his] own appear­ance and seemed to know it was [him]self.”
[pre­sen­ta­tion slide]

Just some more infor­ma­tion about how he react­ed to the pho­tographs. I’m try­ing to go through this quick­ly for time.

These pho­tographs are not the result of an acci­dent; they result from spe­cif­ic and inten­tion­al manip­u­la­tion of the cam­era by Naruto.”
Brief of Agustin Fuentes, PhD, ami­cus curi­ae [pre­sen­ta­tion slide]

And when we argued the case to the Ninth Circuit (I’m fast-forwarding a lit­tle bit; I’ll come back.), sup­port­ive of the notion of what I just said was Agustin Fuentes, a PhD at the uni­ver­si­ty of Notre Dame, who is an expert in macaques, who said, These pho­tographs are not the result of an acci­dent; they result from the spe­cif­ic and inten­tion­al manip­u­la­tion of the cam­era by Naruto.”

Now, the copy­right law does not— When we found out about these pho­tographs, it was as a result of a dis­pute between Mr. Slater and Wikimedia. Mr. Slater pub­lished the pho­tographs and they became inter­na­tion­al­ly famous. And then Wikimedia post­ed the pho­tographs, espe­cial­ly the famous mon­key self­ie, on their pub­lic domain or free to use web site. And Mr. Slater took excep­tion to that, claim­ing that was a vio­la­tion of what he claimed to be his copy­right.

Wikimedia responded—they had two respons­es. The first is, You’re not the copy­right own­er because you did­n’t take the pho­tographs, the mon­key did.” And, because the mon­key took the pho­tographs, and mon­keys can’t own copy­rights, they’re in the pub­lic domain.”

Well, we saw the sto­ry and we agreed with the first part of what Wikimedia said, but we disagreed with the sec­ond part. And so we brought—PETA—brought as next friend of Naruto (in oth­er words as the rep­re­sen­ta­tive of Naruto), we brought a copy­right infringe­ment law­suit in fed­er­al court in the Northern District of California San Francisco, against Mr. Slater and the pub­lish­ing who pub­lished the book that had as the cov­er the famous mon­key self­ie pho­to­graph, claim­ing that they were infring­ing on Naturo’s copy­right.

What we argued very sim­ply was that because the copy­right law does not express­ly require human author­ship, it sim­ply vests the copy­right in the author or the cre­ator of the work, Naruto was the cre­ator, there­fore he should be enti­tled to own the copy­right.

And this was con­sis­tent in our view with what has been a con­tin­u­al expan­sion of the applic­a­bil­i­ty of copy­right law through­out our coun­try’s his­to­ry.

Now, one of the oth­er things that we argued was that there is no require­ment that an author derive any mon­e­tary gain from his work nor that he intend to pub­lish it. That ques­tion, you could under­stand how that would come up. I got the ques­tion ear­li­er today while peo­ple were still com­ing in, Well, how could he do any­thing with it? How could he, Naruto, do any­thing with it?” And the answer’s the same as it is for a minor child, or for a mentally-incapacitated human. And that is that you do it through rep­re­sen­ta­tives. And that’s what we were ask­ing the court to do in the case basi­cal­ly, was allow us to be Naruto’s rep­re­sen­ta­tive. And once the copy­right was grant­ed to him, that we would, com­plete­ly free of charge, not tak­ing a dime, admin­is­ter the copy­right in the pho­to­graph, to license the pho­tographs, etc. so that every pen­ny raised could ben­e­fit Naruto and his oth­er macaques and pro­tect them and their habi­tat in Sulawesi.

So at the dis­trict court lev­el, the judge grant­ed the motion to dis­miss the laws find­ing that ani­mals could not own copy­right under the Copyright Act. And of course that was the crux of the issue. And so we appealed to the Ninth Circuit Court of Appeals and we argued the case toward the end of last sum­mer. And after the case had been argued and before an opin­ion was issued, we entered into a set­tle­ment with Mr. Slater by which he agreed to donate 25% of his gross pro­ceeds from licens­ing the pho­to­graph, for­ev­er, for the ben­e­fit of the macaques in Indonesia.

So, that’s an overview. I think we can prob­a­bly go on with the pan­el dis­cus­sion.

Jonathan Lovvorn: Thank you so much for that, Jeff. Obviously there’s a whole lot to unpack there. I think where I’d like to start is maybe to turn to our oth­er pan­elists and get some ini­tial reac­tions.

Christopher Bavitz: Yeah, sure. Thank you. This is great. And I real­ly want to thank Gabriel in par­tic­u­lar for get­ting this all going and start­ing this con­ver­sa­tion. Just a lit­tle bit of con­text before we get into the sub­stance is, some of us were talk­ing ear­li­er about the fact that the Berkman Klein Center, where Kendra and I and many oth­er here are based is sort of in the midst of this very large research ini­tia­tive in col­lab­o­ra­tion with friends over at the MIT Media Lab look­ing at arti­fi­cial intel­li­gence and machine learn­ing and algo­rithms, and think­ing about legal and reg­u­la­to­ry mod­els that relate to that. And when Gabriel first reached out and said could we get some copy­right folks to come on a pan­el and talk about that, we’re hap­py to do that because we like to geek out about copy­right law and this has been an inter­est­ing case to fol­low.

But one of the rea­sons why I think Berkman insti­tu­tion­al­ly said let’s put this into our week­ly series is that with sur­pris­ing reg­u­lar­i­ty, this case comes up when we’re talk­ing about arti­fi­cial intel­li­gence and when we’re talk­ing about the increas­ing capac­i­ty of machines, of com­put­er pro­grams, of soft­ware, to gen­er­ate works that I think all of us would describe as sort of cre­ative or expres­sive works by any def­i­n­i­tion. So I think it’s become if noth­ing else a real­ly use­ful sort of fram­ing device in a world that does­n’t real­ly have a lot of great, use­ful fram­ing devices yet for some of these very bleed­ing edge tech­nolo­gies as we think about exact­ly what it means to be a cre­ator and whether you know, the inter­me­di­ary piece of soft­ware that you use to gen­er­ate a cre­ative work is itself a cre­ator or if it’s mere­ly a tool akin to whether it’s a paint­brush or a syn­the­siz­er or a cam­era. Anyway, this case kind of tees up a lot of those issues.

On some of the sub­stan­tive issues I think we’ll all have reac­tions. I’ll just throw out a cou­ple to kind of get us going. I think that one of the things that con­cerns me about the way this case was pos­tured, and I think it came up in the ini­tial com­ments, is that it kind of came down to a dis­pute over whether this one per­son or this one mon­key owned the pho­to­graph. And there is a very viable third way here, which is that nobody owns this pho­to­graph. And I think that there’s a lot from a pol­i­cy per­spec­tive to say in favor of that out­come here, sim­ply in the vein of try­ing to insure that we have a robust com­mons of works that we can all use and rely on in our own cre­ative endeav­ors.

So I think that there’s a lot to cri­tique here about the pho­tog­ra­pher’s posi­tion in this case that he owned this pho­to­graph that was snapped by the mon­key. But I don’t think that that nec­es­sar­i­ly means that we have to there­fore run around and find anoth­er own­er for this pho­to­graph, right. There could be a per­fect­ly rea­son­able out­come here that no one owns it. There are lots of things that no one owns, and that’s a good thing—data and infor­ma­tion and facts and ideas, and the list goes on. There are pro­vi­sions in the Copyright Act about that. So, I just want­ed to kind of make sure that’s out on the table.

The oth­er thing I’ll just men­tion briefly and then maybe we can we can dig in a lit­tle more is…as I’ve thought a lot about this case is… Kind of before we get to the spe­cif­ic pro­vi­sions of the Copyright Act that were put up on the screen, we step back and say why do we have copy­right pro­tec­tion? What’s the pur­pose of this? And lots of peo­ple dis­agree about this, there’s lots of dif­fer­ent the­o­ries. But the main one, the pre­vail­ing one I think it’s fair to say in the US at least, is that copy­right cre­ates an incen­tive. Our Constitution says that Congress, among the very lim­it­ed list of things that Congress is allowed to do like you know—really along the lines of wage war and print money—kind of amaz­ing­ly is pass intel­lec­tu­al prop­er­ty laws that incen­tivize peo­ple to cre­ate stuff. And that incen­tive exists, arguably, because if I sit down at my desk to write my great American nov­el or to write my symphony—I’m going to sit down and engage in a cre­ative act—I’m incen­tivized to do that because at the end of that cre­ative process I know for some lim­it­ed peri­od of time I will have copy­right pro­tec­tion in it. I will then be able to exploit it. I can kin­da do what­ev­er I want with it.

That’s a fic­tion, right. So let’s— You can poke holes in about sort of the incen­tive the­o­ry, but let’s stick with it for a minute because that’s I think the pre­vail­ing one here. I’ve strug­gled a lot to fig­ure out how to map that onto a world where either com­put­er pro­grams, or for that case Naruto, are incen­tivized by bestow­ing on them copy­rights, to do the kinds of things that they do.

Now again, the self­ie that was put up on the screen of the person…when I go and take a self­ie of me, or me and Kendra, or me and my kids, I’m not doing that because I’m incen­tivized to do it by virtue of think­ing long ahead, Wow, this will give me my whole entire life­time plus X num­ber of years of copy­right in the self­ie.” So again, we have to rec­og­nize that’s a bit of a fic­tion. But I think even that kind of frag­ile fic­tion to me falls apart even fur­ther I think we’re talk­ing about ani­mals and real­ly a whole range of non­hu­man poten­tial cre­ators and copy­right own­ers.

Lovvorn: That’s very inter­est­ing. Kendra or Tiffany, you want to—?

Kendra Albert: Yeah. So I’ll jump in next. So in addi­tion to some of the things Chris raised, I think when I’m think­ing about the Naruto case, one of the key set of con­cerns that I have per­son­al­ly I will relate to sort of two broad cat­e­gories think­ing about admin­is­tra­bil­i­ty and think­ing about speech. So you know, it’s true as Chris said that in the Constitution, Congress is giv­en the right to pro­mote the progress of sci­ence and Congress is sup­posed to pro­mote the progress of sci­ence and the use­ful arts. And you know, we have 200, 300 years of debate about how best to do that and whether the copy­right sys­tem accom­plish­es that goal as cur­rent­ly con­sti­tut­ed.

But one oth­er thing to think about in the sort of realm of when we’re talk­ing about copy­right specif­i­cal­ly is it’s a form of speech reg­u­la­tion in addi­tion to an incen­tive struc­ture, right. It’s both about cre­at­ing a sym­pho­ny, but it’s also about say­ing, Hey, you can’t per­form my sym­pho­ny with­out my per­mis­sion.” And I think that espe­cial­ly when we look at the con­text of non­hu­man actors, you know, for me that rais­es real ques­tions about how we might give peo­ple who we may not ini­tial­ly think of as the ones who we want to have pow­er over that kind of speech, pow­er over that kind of speech through intel­lec­tu­al prop­er­ty pro­tec­tion.

And I know PETA’s been real­ly active in the fight against ag-gag laws, which… Agricultural gag? I’ve nev­er heard it referred to in the long form that’s not short­ened. But laws that pro­hib­it sort of peo­ple going in and film­ing abuse that’s hap­pen­ing in fac­to­ry farms. And I think one of the things that we might want to also think about in the con­text of when we grant addi­tion­al IP pro­tec­tion is what types of harm might we see that result from from the speech being owned in ways that it was­n’t pre­vi­ous­ly. For exam­ple, speech in the pub­lic domain, or works in the pub­lic domain, don’t nec­es­sar­i­ly come into those same kinds of speech restric­tions.

The oth­er con­cern which I think is more about just sort of the prac­ti­cal­i­ty of these things is we already see in our cur­rent copy­right sys­tem plen­ty of exam­ples of how even peo­ple with very very ten­u­ous claims to copy­right use intel­lec­tu­al prop­er­ty pro­tec­tion against speech they don’t like. And that this comes up in con­texts like DMCA take­downs. It can come up in video games. It can come up non­con­sen­su­al pornog­ra­phy. It comes up in a vari­ety of dif­fer­ent places. And so once you have an entire class of folks who might be able to pro­duce works but who there isn’t sort of a nat­ur­al…one rep­re­sen­ta­tive for who sort of auto­mat­i­cal­ly advo­cates for them. So ani­mals or even like, AI, you get into a whole debate about who owns it and who has the right to con­trol it that you know…we are already hav­ing in small scale in our cur­rent copy­right sys­tem, and the sort of poten­tial for the even larg­er admin­is­tra­bil­i­ty prob­lems of non­hu­man actors real­ly con­cerns me as some­one who already sees real speech prob­lems in the way that copy­right is admin­is­trat­ed online.

Lovvorn: Tiffany?

Li: Sure. So just as a brief caveat, I am work­ing for the Wikimedia and Yale Law School Initiative on Intermediaries, but my opin­ions obvi­ous­ly do not nec­es­sar­i­ly rep­re­sent those of the Wikimedia Foundation.

That being said, I want to talk a lit­tle bit about AI and the con­cept of non­hu­man authors gen­er­al­ly, includ­ing ani­mals.

So, I think that one thing we have to rec­og­nize is that cur­rent­ly under the law, copy­right is only avail­able for human authors. And the most recent guid­ance we’ve seen from the Copyright Office has specif­i­cal­ly used the word human. Whether this is a pos­i­tive or neg­a­tive can be debat­ed, but that’s what we have under the law and under our admin­is­tra­tive guid­ance right now. What this means is that actors like Naruto or actors like IBM Watson, for exam­ple, can’t be con­sid­ered authors under cur­rent law.

So the more inter­est­ing ques­tion, though, is should they be con­sid­ered authors? Or should we change our laws to accom­mo­date for these new forms of author­ship? And I think when we’re look­ing for arti­fi­cial intel­li­gence, we see a few dif­fer­ent mod­els that dif­fer­ent schol­ars have cre­at­ed. There’s first the idea that I think Chris men­tioned first about just let­ting loose these art­works or these works into the pub­lic domain, because you can’t real­ly deter­mine who was cre­at­ing that work. And that of course comes with ben­e­fits to the pub­lic domain, but pos­si­bly neg­a­tives con­cern­ing incen­tives if you think that for exam­ple some­one might be less incen­tivized to cre­ate the algo­rithm or the pro­gram if they know they can’t make mon­ey off it.

There’s also a mod­el that claims that who­ev­er designed the pro­gram or the arti­fi­cial intel­li­gence sys­tem should be able to own the copy­rights because they should be able to get the fruits of their labor. This is very basic incen­tive the­o­ry again.

And I think what’s also inter­est­ing, which we haven’t real­ly dis­cussed yet, is the more UK or EU-based mod­el of moral rights for author­ship. And here I think there’s maybe a stronger argu­ment for giv­ing author­ship to ani­mals and AI. If we con­sid­er moral rights, we con­sid­er art­works (or just works) that are cre­at­ed as exten­sions of the author. We can then think of inten­tion­al­i­ty, cre­ativ­i­ty, what it means to be a cre­ative artist, or to cre­ate a work. And in that analy­sis we may have, I think, more argu­ments in favor of giv­ing copy­right to Naruto or to an AI.

Under cur­rent US law, I don’t think we have this and I don’t think there’s a good foun­da­tion for this. US prece­dent on these issues has gen­er­al­ly, again and again vot­ed against giv­ing copy­right to non­hu­man authors. This includes cas­es involv­ing non­hu­mans like celes­tial spir­its, a claimant said was writ­ing or cre­at­ing art through them. Obviously the spir­it was not allowed to own copy­right, and that was one prece­dent that we have to look at right now, con­sid­er­ing AI and authors who are non­hu­man mov­ing for­ward.

And I think I’ll just end on one ques­tion, which is some­thing that I think about a lot actu­al­ly. Because I’m not com­plete­ly sure that Naruto, or that ani­mals, should­n’t own copy­right. I think right now they don’t under the law. But in the future, if we get to a point where we change our under­stand­ing of maybe just neu­ro­science or how ani­mals think and react, and how arti­fi­cial intel­li­gence sys­tems can think and react if they can be said to think and react… In that future sce­nario, then we might have to recon­sid­er what is cur­rent law. I do think, though, right now we don’t have this in the law. But in the future we might.

Lovvorn: Interesting. Yeah. I mean, I’m going to go back to Jeff in a sec­ond, but what struck me was how…open the Copyright Act is with regard to pro­vid­ing no guid­ance on this par­tic­u­lar issue. And then the Copyright Office’s pol­i­cy was very inter­est­ing, because it did­n’t cite any par­tic­u­lar statu­to­ry struc­ture, it just sim­ply said nat­ur­al acts, ani­mals, and oth­er cre­ations of nature don’t qual­i­fy. Which I per­son­al­ly found very inter­est­ing, because last time I looked, I thought humans were both ani­mals and part of nature. It sort of shows the dual­i­ty of how they’re think­ing about the sep­a­ra­tion of peo­ple from humans.

But it in terms of fur­ther devel­op­ment, Jeff what do you think about this? I mean the Copyright Act, and this is what I allud­ed to in open­ing, so many of our laws don’t spec­i­fy who they’re talk­ing about in grant­i­ng rights or priv­i­leges. And so it seems like there’s enough room in the Act to allow this if the Copyright Office chose to do so.

Kerr: I could­n’t agree with that more. And that’s pre­cise­ly what we argued. There is no ques­tion, just like with the pho­to­graph of my col­league that I put up, that if a human being had tak­en that pho­to­graph and some­body else tried to use it, every­body would line up 100% behind the human who took the pho­to­graph, claim­ing, You can’t do that, that’s his or her pho­to­graph. They own the copy­right.”

Our view from the ani­mal rights per­spec­tive is well, it should­n’t be any dif­fer­ent sim­ply because the pho­tog­ra­ph­er hap­pens to be one of our fel­low ani­mals but sim­ply not human. In our view that is the most basic form of prej­u­dice, based upon species. And that’s exact­ly what we’re argu­ing about. And one of the argu­ments we had to deal with was this notion of well, the Copyright Act is silent on who can be an author. And I believe that’s just false, and I think the case law bears it out. The Copyright Act says it’s the author, and that cas­es have defined who the author is. And just like some of the oth­er pan­elists have said, the Act is writ­ten inten­tion­al­ly broad­ly and open-ended. Because Congress said, We can’t pos­si­bly con­ceive of all of the dif­fer­ent types of tech­nolo­gies, advance­ments, or inven­tions that are going to come about.” And we’d be back here every oth­er Tuesday giv­ing a laun­dry list of new things that should be enti­tled to copy­right pro­tec­tion.

Well, our argu­ment was quite sim­ply well, that argu­ment should apply with equal appli­ca­tion to the iden­ti­ty of the author. If you can iden­ti­fy an author— Now, no ques­tion, there may be cir­cum­stances in which the iden­ti­ty of the author who actu­al­ly cre­at­ed the work may be a ques­tion. That was­n’t our case. Everybody, includ­ing the own­er of the cam­era that was used admit­ted that Naruto him­self, with­out any assis­tance, took the pho­tographs. From an ani­mal rights per­spec­tive, that should enti­tle him to the own­er­ship of the copy­right.

Now, that does get into a cou­ple of oth­er things that were raised, if I could take just a sec­ond. And I touched on it briefly in the intro­duc­tion. It does require some­body oth­er than Naruto to uti­lize, license, and mon­e­tize the work for the ben­e­fit of the author—Naruto and his oth­er macaques and the habi­tat. But I do think it’s impor­tant under­stand that the Copyright Act applies equal­ly, not for any kind of incen­tive but to pro­tect the orig­i­nal­i­ty of the author’s work.

And I think it was Chris who touched on it, talk­ing about your own per­son­al self­ies. Those are nev­er intend­ed— There’s no incen­tive to tak­ing those. They’re nev­er intend­ed nec­es­sar­i­ly, except maybe on social media, to see the light of day. But nonethe­less, even if you don’t want to use a copy­right­ed image, you have the right as the author and own­er of that copy­right­ed image to pro­hib­it the rest of the world from using it. And I think that that right of pro­hi­bi­tion was over­looked in our case and is fre­quent­ly over­looked in the dis­cus­sion in rela­tion to Naruto and oth­er ani­mals.

Kerr: Well, [crosstalk] I want­ed to come back to that—

Albert: Can I just jump in briefly. So Mr. Kerr, with all due respect I think you’re over­stat­ing the clar­i­ty with which the Copyright Act does­n’t talk about who specif­i­cal­ly might own author­ship. Like, specif­i­cal­ly in the def­i­n­i­tions, when we talk about who might inher­it copy­rights it talks about chil­dren, and in the def­i­n­i­tion of chil­dren it talks about peo­ple.

So I think that at the very least, part of why I think I was try­ing to focus on what might we think about mov­ing for­ward if we grant this, is that I do think there is both case law and the sig­nif­i­cant evi­dence in the statute that the Copyright Act is meant— Though that author­ship des­ig­na­tion is at its core refer­ring to persons—some form of per­son­hood.

And in addi­tion, I also you know… Your cat­e­gor­i­cal state­ments about pro­hi­bi­tion are just like, legal­ly incor­rect. You know, we have Fair Use, which allows peo­ple to make use of oth­er peo­ple’s works when it’s con­sis­tent with the statute’s fac­tors. So I real­ize that your posi­tion on ani­mal rights brings a set of strong state­ments to the table, but I think that the real­i­ty of how copy­right is admin­is­tered means that it’s in fact a bit more com­pli­cat­ed than you’re pre­sent­ing it as.

Kerr: Well let me—

Lovvorn: Well, before you jump in. Let me come back to— And I want­ed to come back to Kendra, your point about the First Amendment. Because although I’m not an expert on it, it appears that the statute is at best ambigu­ous with regard to what they mean when they say author.” And we have this across so many dif­fer­ent areas of fed­er­al law that grant rights or duties and don’t real­ly say who they’re talk­ing to.

So what about the First Amendment aspect of this— And you know, when we have ambi­gu­i­ty in the statute, as you men­tioned Kendra, copy­right lim­its First Amendment rights, to what extent, Jeff, do you feel that that should play a role in decid­ing how we answer this par­tic­u­lar ques­tion, both with regard to ani­mals, or intel­li­gent machines? Do we need to rather than fol­low the broad pre­scrip­tion of sort of expand­ing copy­right, do we need to stop and pull back a lit­tle bit because copy­right affects First Amendment rights?

Kerr: Well, I’m not a First Amendment expert, nor am I an AI expert. I’m the ani­mal rights lawyer and I’m here to advo­cate for the ani­mal’s per­spec­tive, as we were in the case. I think any time you get to what’s miss­ing from the First Amendment—and let’s under­score the human First Amendment—the ani­mals in our per­spec­tive are com­plete­ly absent from that cal­cu­la­tion. They have no real voice under the law. The laws are chang­ing for the good because of the work that Jon and his col­leagues, and I and my col­leagues, and a lot of oth­er real­ly good peo­ple are doing around the world to try to advance ani­mal law. But we still have a long way to go, and by and large the laws that exist are… I like to refer to them as ani­mal exploita­tion laws, not ani­mal rights laws. By and large they are more laws about the nature and extent to which human beings can abuse or exploit ani­mals rather than it is about fun­da­men­tal, enforce­able legal pro­tec­tions. And when I say enforce­able I mean enforce­able in their own right in the names of the ani­mals for them­selves.

If I could touch on just a cou­ple of oth­er things. Kendra’s com­ment about Fair Use is very well-taken, and I was­n’t try­ing to evis­cer­ate an entire cat­e­go­ry of copy­right law by my state­ments. But to address the spe­cif­ic point about the use of the word chil­dren” in who can inher­ent copy­rights, yes that is in the Act. But it’s also very clear under the Copyright Act that cor­po­ra­tions can own copy­rights, and they don’t have chil­dren, either.

So I think our read­ing is entire­ly con­sis­tent with the notion that chil­dren are there for an inher­i­tance perspective—I have no prob­lem with that. But as with cor­po­ra­tions, there’s still the abil­i­ty for some­body oth­er than a human being to own a copy­right, who don’t have legal­ly cog­niz­able issue to whom it could be giv­en.

Bavitz: There is a schol­ar­ly piece out there by Annemarie Bridy, who writes a lot in this area, kind of on that point about the notion of hu— Less about I think using Naruto as a fram­ing piece for con­ver­sa­tions about this tech­nol­o­gy, but tak­ing the point that a cor­po­ra­tion is an exam­ple of a non­hu­man that can nonethe­less be not just a copy­right own­er but actu­al­ly an author in the con­text of works made for hire.

Lovvorn: And maybe Tiffany we could hear from you on— Do you have thoughts about this ques­tion and would those pro­vi­sions refer­ring to chil­dren and inher­i­tors, would they also pro­hib­it a copy­right in your view from apply­ing to arti­fi­cial intelligence-created work?

Tiffany Li: Sure. So I think there are a few dif­fer­ent things to talk about here. The Annemarie Bridy arti­cle is great. And I think that one thing she does men­tion when talk­ing about cor­po­ra­tions own­ing copy­right is the fact that cor­po­ra­tions at the end of the day are groups of peo­ple. So you con­sid­er it more of a col­lec­tive copy­right still owned by humans, not a true non-human author.

That being said, if we look at the leg­isla­tive his­to­ry or the his­to­ry of the Copyright Act and how it’s been inter­pret­ed, I think that the point of the def­i­n­i­tion’s very inter­est­ing. But like I said before, I think under cur­rent law it’s dif­fi­cult to find rea­son­able argu­ments in favor of giv­ing copy­right to ani­mals. However, we have to look at the his­to­ry of law. US law has not con­sid­ered many peo­ple human beings. Actual human beings were not con­sid­ered human beings. So in that case we have to think about the future. And if our cur­rent under­stand­ing is incor­rect, if the day comes when we find that our cur­rent under­stand­ing of ani­mal behav­ior and think­ing and intel­li­gence is incor­rect, I think at that point we go back and look at how we’re inter­pret­ing the Copyright Act. But at this moment in time I still don’t see con­crete rea­sons why under cur­rent law we could pro­vide copy­right for ani­mals.

For arti­fi­cial intel­li­gence, it’s a lit­tle com­pli­cat­ed again. Because you have less of an inde­pen­dent actor as you would find in an ani­mal, and more of a pro­grammed actor. Or an actor that has been… Well, you also have trained ani­mals, so that’s a sim­i­lar com­par­i­son. But you have works that are cre­at­ed, that have to be cre­at­ed at least with a human at some point in the sys­tem. With an arti­fi­cial intel­li­gence sys­tem, at some point there was a human involved.

With ani­mal-cre­at­ed work, if you call it cre­at­ed work, it’s pos­si­ble that there could be work cre­at­ed with­out the touch of a human being. So I think that’s a key dif­fer­ence, and that’s also a dif­fer­ence between the issues of ani­mals, AI, and cor­po­ra­tions cor­po­ra­tions. Corporations again are all just a large group of peo­ple.

Lovvorn: Interesting. I think I’d like to take some ques­tions from the floor before we run out of time.

Mary Graham: Hi I'm Mary Graham, a fellow at Berkman Klein. And I'm so struck and that last comment just really grabbed me. I wonder, the question I might have is how this changes if we talk about sentience as a sense, a feeling. So, I'm always a bit nervous when we make appeals to intelligence as a way of adjudicating rights. And particularly because of the conflict of you actually have to diminish in some ways the capacity of Naruto to be able to represent Naruto? So there's already in there a conflict of disabling him in a particular way. Or, um, they. We don't actually know how Naruto represents gender, so that's always really interesting.

But within that I'm just wondering how it changes things to think about feeling as a point of reference for where we think about rights. And with AI, I'm sorry at no point do I see AI and ML as equivalent to a feeling being. So it's a little troubling to see those put in the same category. [some clapping in audience] I feel anxious saying that—thanks, folks.

Jonathan Lovvorn: You have a lot of support in the room for that position.

Jeff Kerr: Yeah, the sentience argument and the sentience point obviously underlies everything that we believe as animal rights lawyers and why we argue for these fundamental recognitions of the legal rights, whether it be copyright or whatever. And we've also been very careful to try to keep the argument focused on Naruto, and in our other cases on the animals themselves in their own right for their own attributes and not in comparison to we as humans. Because we believe although we're working within unfortunately a limited, human-created and human-centric legal system, we believe these animals are entitled to fundamental protections from us in their own right in part because of their sentience.

And if you're wondering, Naruto is not the only artist that we have among the animal world. In fact I was struck… This is a Christmas card that my wife gave me. I had no idea she was getting it for me. This is a painting by a chimpanzee at a Jane Goodall-run and sponsored chimpanzee reserve in Africa. And there are other examples of this, of other animals being given paints and canvases or paper, especially chimpanzees, and completely unilaterally, on their own accord, going off in a corner and making artistic works just as we all did. So I think this is going to continue.

Lovvorn: Well, this actually is something that was on my list, was the situation with regard to captive animal works is very different because one of the essential elements of being a thing under the legal system is you can be owned by another person. So in that case it starts to feel more like artificial intelligence, where you trace the copyright essentially back to the owner. So one of the interesting things that's still to be debated is what happens when we have an owned animal creating a work, is the owner of the animal going to come forward and assert copyright in that instance? And that adds a whole 'nother player between the author, the owner, the public domain, the someone who provided a camera… You have a multiparty sort of situation going on there.

Let's go to additional questions.

Sarah Newman: Thank you everybody. My name is Sarah Newman, I'm a Berkman fellow. I'm also part of the AI Assembly cohort. And my question is a little bit a counterpoint to Mary's comment, actually, which is… Expanding away from copyright, or in addition to copyright, would this case possibly serve as a precedent for thinking about questions around artificial intelligence and how they relate to laws so far that have governed human/animal relations? For example, in the time of Descartes, some people thought that animals were machines. And of course they're not and now we all believe and agree that they're sentient and can feel. But it is possible in the distant future that at some point very intelligent systems might develop certain types of intentionality or agency that we maybe can't understand. And in anticipating that, are there other legal precedents in areas besides copyright, like for example the treatment of animals, that are sort of morally ambiguous across cultures. And maybe would those possibly inform the way we proceed with developing ethics around AI systems? And I'm curious especially to hear from Tiffany and Kendra, but all of you. Thank you.

Tiffany Li: Sure. So I'll start. So I think that when researching this topic one thing I found really interesting is that there is a lot written about the rights of animals, and animals as either the defendants or the people who are the rightsholders. There isn't as much written about the concept of an intelligent or sentient or feeling, whatever, AI in the same way. And I think if we go back to that Annemarie Bridy article, she writes about the question of AI owning copyright as "a bad penny of a question." Because we don't have that sort of strong AI right now, and many people believe we never will. Or if we do it'll be so for the future that anything worth saying today will not apply at all. And that's possible.

What I think is interesting that you were getting towards was that this case could be a precedent, or cases like this could create precedent for thinking about animals as authors and thus as humans, and then AI as humans. I think to add on to that, I think I have one question that…really I don't think there is an answer. But if we're thinking about incentivizing copyright, we also have to think about what copyright we're incentivizing. So are we incentivizing human copyright, or the copyright of any person? Do we want more works in general, or do we want more human works? And that question I think goes along with the question of what is a human, right? And who we should be incentivizing, along with what we should be incentivizing.

Kendra Albert: Yeah. Just to build off exactly what Tiffany was saying, I think that we can see this case in a very black and white sense about how this law applies, what the statute says. But I do think one thing we can think about is you know, if we take seriously the claim that animals should have the same rights and be understood as authors under the Copyright Act, is that the kind of…like, what does that mean for copyright? And what does that future look like? And I think that in many ways it's harder to have a conversation and move beyond the now of how do we get this thing, to the "is that actually a future we want to live in," not because we don't want animals to own copyrights, but should people be owning copyrights? What does this say about the state of creativity and about intellectual property more generally? And I think that's a very hard conversation to have. But I think that in some ways, as Tiffany was pointing out, that may be a much more important question than the sort of nuts and bolts of the statute.

Kerr: If I could just touch on one point that you raised, too. The notion of sort of the arc of our human knowledge of animals' abilities, feelings, etc. That is underscoring the entire drive for expansion of fundamental animal rights. And I like to emphasize that in talks like this because it underscores that our current legal system is based upon our own human ignorance. And it goes back to that prejudice that I talked about, and that Tiffany I think rightly referred to in prior times, where you know, fill in the blank, insert the name of the oppressed group at different stages of human existence. And it's exactly the same thing.

And I think that's been one of the surprises that with Naruto's case and the copyright in that photograph is because I think until that photo and the other photos he took, and the description by Mr. Slater, I don't think a lot of people thought that a nonhuman primate could take photographs like that with a camera. But we're learning more and more about how incredibly sentience they are. We filed a lawsuit on behalf of orcas at Sea World and we exposed to the court how they live with their families for their entire lives. Each individual pod has their own unique language, and culture, and customs, and they teach. I mean, things that we never even knew of twenty-five years ago. And that arc of knowledge is greatly expanding in relation to animals, and that's what my full-time job is, is trying to make sure that we can expand those rights for animals.

Lovvorn: Let's try to get in a few more questions.

Audience 1: I have a couple of questions about the consistency of legality. First of all, as the first lady mentioned, I thought we do use intelligence in law. Like in criminal punishment cases, if your intelligence is only 40 you don't qualify for capital punishment in most states. So if we're already using it, then where's the continuity elsewhere? The other inconsistency that I see is if you own an animal that performs in a movie and you train them, should the animal instead of you get paid? And a third one is where do we stop? Do we allow people to marry animals? If they have a copyright law, they should have marriage laws, right?

Kerr: Well, when we talk about animal rights and laws to protect those, it's not that we're talking about animals should have the same rights as humans. Because their interests and their needs are not the same as humans. It's about the notion of having appropriate rights. And so you look at their at their attributes. We're not talking about animals being able to drive cars. But when you talk about… Unless, later on they show the ability to do that.

And when you talk about intelligence, yes intelligence is an issue in some areas of the law. But not in relation, in many areas, to the entitlement to fundamental rights. A human being in the United States, a US citizen, is entitled to fundamental constitutional rights just by being. And even if that's a minor child who can't form the mens rea or whatever, or somebody who is an incapacitated human adult, they still have certain fundamental protective rights and we believe animals should as well—in their own right, regardless of where they fall on the intelligence quotient in relation to human beings.

Christopher Bavitz: I've got maybe one response that is, and this picks up on a lot of the themes that've come up recently. I like the way Kendra framed it, that it seems to me that if we're going to incorporate monkeys under the copyright law, or monkeys under any law, it requires not simply saying "we're going to treat them the same as humans" but in a sense a wholesale reimagining of what copyright law is, or what any other body of law where I'm sure you all are doing lots of advocacy.

And if that's the case, is a litigation strategy…how effective is that at kind of getting that? Because a litigation strategy where we… I don't want to say this in a disparaging way, but shoehorn animals into this existing body of law that covers humans is going to solve one narrow problem, creating a lot of other problems. Or is it an overall policy agenda we should be pursuing to kind of think holistically about this?

Lovvorn: So in just a few minutes of thinking about this you've arrived at one of the largest issues of animal advocacy, which is really the question about whether or not fundamental change in the legal status of animals can be done within a common law framework, or whether or not it requires legislative or even Constitutional change. We could go on for three or four hours on that. We could get a couple people in here on Skype and really go at it. Obviously Jeff's team ha been working on litigation strategies. Other folks have indicated that that is fundamentally inadequate to deal with this for just the sort of externalities of a decision. And also court's reluctance to take on something that would be so difficult to administer. You can sort of feel that in the opinion I think, a little bit, which is, "If I step on this path, then how do I deal with it?" I don't know if you want to respond to that, but it's a common criticism.

Kerr: Yeah. I think the question is entirely accurate of describing the issues we face. And I think Jon's responses is absolutely right. But what I take from that is we face these kinds of difficult policy questions in everything, and this is the next frontier of the civil rights movement. And just like there were in generations gone by people who pursued litigation as one of many. And I've got to emphasize Jon's comment in that regard. Litigation is one of many avenues in which we are trying to advance the ball for for animal rights. And yeah, we may not win that case. I think Brown v. Board of Education if memory serves was the sixth or seventh legal challenge to separate but equal in the wake of the Plessy v. Ferguson decision. And they obviously all lost before Brown. So it certainly presents its challenges but it's another area where as animal rights lawyers we have to challenge that status quo and the exclusion from fundamental legal rights of animals.

Lovvorn: And one theory of legal change in that respect is it almost takes a decision that creates a hiccup and a problem that the legal system can't really deal with to force the legislature into action because we know how responsive and proactive they are. So some people who argue in favor of the judicial approach feel that you actually need to create something of a trainwreck in order to get it.

I think we have time maybe to get one more question in.

Kathy Pham: Hi, I'm Kathy Pham, also a Fellow at the Harvard Berkman Klein Center and involved with the Ethics and Governance of AI Initiative as well. This talk brought up something I haven't thought about before, coming more from the tech background. And normally in law, are all nonhumans conflated into one, and essentially is that how laws are made and adjusted? And so should we expect that AI and animals are essentially kind of clumped together when law or policy shift? Just I think it would be helpful to understand and know, coming from the perspective of people building the technology?

Bavitz: I don't think that AI and animals should necessarily be clumped together in part for the reasons that Mary suggested. As to the distinctions among animals, I'd love to hear your reaction.

Kerr: Yeah I'm not enough of an expert in AI to talk about it intelligently. I think you're absolutely right. Right now, there is what we would refer to as a species barrier in law, and it's humans and everybody or everything else. I think what the intersection of animal law and AI expose is that that monolithic other is nothing of the kind. There are many branches. Animals, artificial intelligence, and that's where the extent of my knowledge in that realm ends and I defer to my distinguished copanelists here. But I think that's an excellent point. I think there are degrees and different branches off of the same tree of legal rights.

Li: Sure. And I think that when we think about AI, especially people building AI, technologists I think have much different understandings of these issues than lawyers do. Because lawyers think of AI sometimes in possibly naïve ways. I like to put it as most AI scenarios that we talk about are either AI as super-advanced statistics, or AI as some sort of future fantasy magical robot, right. Like that's how the law usually treats it, even legal scholars.

And when we think about that, sure, there are different cases, right. If we do get into that sort of fantasy future scenario where you have a robot or an AI system that thinks, that is found to have feelings or emotions or whatever we consider to be the heart of a human being… Maybe it has a literal heart of a human being. Those AI systems then may be a form of nonhuman author that the law considers human. At the same time, if we also go with that fantasy scenario, I'm sure how many of you have seen Planet of the Apes? Right, pretty much everybody. I actually have not. But we all know the story.

So if we get to a future scenario where you have a Planet of the Apes world in which you have these superintelligent, possibly genetic engineered animals who act and think and feel, etc. like human beings, sure, the law probably will consider them human beings. But until that day, we have to consider these different issues we talked about today possible strategies for changing the laws, possible strategies for maintaining the laws but recognizing different rights. Or, as Kendra put it, just overthrowing the entire legal regime. All great options.

Lovvorn: Okay. Well, I think we'll end with overthrowing the entire legal regime. But thank you to our panelists. Thank you for everyone for your questions. And thank you for coming out today.

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