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51 J. Pat. Off. Soc'y 378 (1969)
Can a Computer Be and Author or an Inventor

handle is hein.journals/jpatos51 and id is 406 raw text is: Journal of the Patent Office Society CAN A COMPUTER BE AN Karl F. Milde, Jr. AUTHOR OR AN INVENTOR? INTRODUCTION The question of whether the writings or discoveries of a computer can constitute the writings of an author or the discoveries of an inventor in the sense of the patent and copyright clause' of the United States Constitution has never been considered, much less de- cided, by any court in the land. There seems to be no question, however, that this question will soon arise. On their face both the Copyright Statute and the Pat- ent Statute exhaust the constitutional limits of their respective subject matter with respect to this issue. For copyrights, courts have repeatedly held, in spite of Section 4,2 that unless the subject matter is specifically defined and permitted protection under Section 5 of the Copyright Statute it falls without the class of subject matter for which Congress intended copyright protec- tion to be given.8 However, as Congress never antici- pated, when considering the statute in 1909, that machines might some day be functioning as authors, Section 5 only defines the subject matter of copyright in terms of the kinds of works which may be protected. No mention is made of what the writer has to be to qualify as an author. At least this much of the statute is therefore ambiguous and could presumably be tested in the courts against the constitutional standard. Until this is done the question, Can a computer be an 'author' To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article I, Sec- tion 8. 2 §4. ALL WRITINGS OF AUTHOR INCLUDED.-The works for which copyright may be secured under this title shall include all the writings of an author. 17 U.S.C. §4. 3 See, e.g., Capitol Records, Inc. V. Mercury Records Corp., 221 F.2d 657 (2d Cir. 1955) and Fashion Originators Guild of America. Inc. V. F.T.C., 114 F.2d 80 (2d Cir. 1940), aff'd, 312 U.S. 457 (1941).

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