Volume 67

I am pleased that volume 67’s third issue of the Journal offers four interesting and valuable articles that reflect the breadth of our most interesting field.

The issue begins with an explanation of the European Union’s Directive on Copyright in the Digital Single Market of 17 April 2019. This directive is of intense interest because it asks EU member states to implement new law that will place on many online platforms the obligation to seek licenses for the posting by users of copyrighted works. Under United States law, such platforms currently enjoy reasonably good immunity from copyright liability under the notice-and-takedown regime of the
Digital Millennium Copyright Act. The nuances of the coming implementation by EU member states could greatly affect the interests of copyright holders and technology companies in the United States, and the Journal is delighted that two experts on EU intellectual property law, Professors Alex Metzger and Martin Senftleben, have written a clear, concise explanation of the Directive and its major implications. The issue continues with two examinations of domestic copyright law. The first of these is a fascinating examination of a question not often considered: To what extent does Title 17 apply on tribal lands? One might imagine that Title 17 must apply, and that its application matters to ensure uniform treatment of copyrightable works. That having been said, sovereign Native American governments control tribal land, and such control arguably includes regulating Native American creative and artistic practices. Professor Trevor Reed, an expert on both copyright and Native
American law, gives us a detailed examination of this issue. He concludes that the question at hand is not settled and gives us his recommendation for proper resolution.

The second of these is an evaluation of the recent Supreme Court case, Georgia v. Public.Resource.Org, by Professor Joseph Liu. In that case, the Court held that copyright does not protect statutory annotations incorporated into the Georgia state code. That result is perhaps predictable given prior case law about public access to law. Professor Liu notices, however, that the Court’s opinion rests on the premise that those writing the Georgia code and its annotations cannot logically be called “authors” within the meaning of copyright law. This is a potentially controversial position because the annotations in question were not written by legislators
or staff, but by a private contractor who would normally be considered an author. Professor Liu then links this reasoning to a larger trend in Supreme Court copyright jurisprudence in which the Court refrains from significant policy analysis, preferring instead to rely on statutory and doctrinal
logic that may leave vital questions and motivations unanswered. He raises concerns that such trends may compromise the healthy development of copyright should they become widespread and prevalent.

Our last article examines a topic that will assume greater and greater importance in the coming years – namely how copyright should treat works created by artificial intelligence. Here, Professor Patrick Goold studies this question by conducting four case studies of works produced by machine learning. These works represent different genres (literary, dramatic, artistic, and musical works), representing the current state of how such works might be “authored.” Professor Goold’s description of these works and their creation alone is informative, but he goes on to analyze whether these works are copyrightable under traditional principles. He concludes that these works should be protected by copyright because the creators (those responsible for setting the machine learning in motion) made creative choices about the data to give the relevant algorithms, the training of the artificial intelligence, and the kind of output to be produced. Professor Goold does not go so far as to consider all works created by artificial intelligence copyrightable, but he gives us a framework for thinking about the relevant issues going forward.

I hope that our readers will enjoy these articles and find them as informative as I have.

Alfred C. Yen
Professor of Law and Dean’s Distinguished Scholar
Boston College Law School
alfred.yen@bc.edu