2. Why making a difference between AI and HI (Human Intelligence)?
3. Given the fast development in the field, when does the difference made above (if any) start being outdated and unrealistic and how do we future-proof against this?
Regardless of perhaps more philosophical differences around whether something can or can't create something new, there's a practical difference.
Humans learn slowly, and can't be replicated. AIs can be trained once and used in a billion places. The speed and replication makes things different in a very practical sense, even if there's no clear line between them.
Because you can't copyright a human brain, and because humans (unlike machines) can themselves create works subject to copyright.
The practical answer is that the copyright office refuses to register AI generated works, and you can't sue for copyright infringement without valid registration under Title 17.
The pencil is not a derivative work of a pile of copyrighted material.
> Why does one produce something copyrighted why the other doesn't?
There's existing case law that non-human entities (e.g. animals) can't create copyrightable works. And in the case of an AI LLM, the AI LLM itself is a derivative work of its training data (as evidenced by the fact that it can by default spit out training data verbatim, even if it has had after-the-fact filters added to prevent such responses).