The Advent of Effortless Expression: An Examination of the Copyrightability of BCI-Encoded Brain Signals

By Jonathan Baker. Full Text.

This Note anticipates the development and deployment of brain-computer interfaces (BCIs) and attempts to reconcile this technology’s implications with modern U.S. copyright doctrine. Although researchers and practitioners have primarily used BCIs to restore motor function to and improve the quality of life for people severely disabled by neuromuscular impairments, the mechanisms and rapid advancement of BCI technology gives reason to believe that such devices could foreseeably measure the brain signals representing creative thought itself rather than the signals generated to physically express that thought. Assuming these digitized brain signals are sufficiently original, the Copyright Act of 1976 ostensibly will grant protections to such thoughts despite them never manifesting as traditional physical expression. After an examination of the history and philosophical underpinnings of U.S. copyright law and judicial opinions addressing new technologies in the context of copyright protection, this Note ultimately recommends that although BCI-encoded brain signals qualify for protection under the letter of the Copyright Act of 1976, they should not be copyrightable unless Congress implements an exceptional “effort requirement,” the fulfillment of which would bring BCI-encoded brain signals within the utilitarian confines of the American copyright regime.