Artificial Intelligence (AI) And Copyright

“The rapid growth of Artificial intelligence (AI) in producing artistic work has raised a controversial question of the Copyright Ownership. This article address the issue of IP ownership of AI generated works and provides for some feasible solutions to remedy the copyright laws which lacks protection for authorless works produced by Artificial Intelligence

Google has just started to fund computer software which will write local news. A short story written by Japanese computer software made it to second rounds of national literary prize. And an artificial intelligence company called deep mind has created software that can generate music by listening to music. All these foregoing flashy news stories are evident of the benefit and popularization of Artificial Intelligence in the modern world.

Earlier, the computer generated works relied heavily upon the input provided by the programmer, the software was very much like a tool or a mechanism like brush or canvas. But, of late, the rapid development in technology especially artificial intelligence forces us to think about the nexus between computers and creative processes. This nexus is a result of machine learning software, a subset of artificial intelligence that is capable of learning from the past experience without being specifically programmed by a human.

When machine learning algorithms are applied to literary works, music and art; they learn from the inputs provided by the programmer and generate a new piece of work while making independent decisions to determine what the new work looks like. Today these computer programs are often referred to as neural network, a process which is akin to the thought process of humans.

Complications for Copyright Law

Works which are produced by machine learning programs could create implications for copyright laws. Traditionally, the ownership of copyright work was not in question as the software was used as a mere tool to support the creative process. Furthermore, creative works are granted protection only if they are original in nature and the definition of originality requires a human mind. Copyright laws of Germany and Spain states that work of human minds will only be protected.

So, there are two ways in which copyright ownership can be bestowed on computer generated work. Firstly, copyright protection can be denied as there is no involvement of human mind. Secondly, it can be attributed to the creator of the program.

There are many countries whose laws are not compliant with non human copyright ownership. For ex. – in United States, the Copyright Office has declared that it will register an original work of authorship, provided that the work was created by a human being. This position flows from the case of Feist Publications v Rural Telephone Service Company[1]. Following the lead, in a recent Australian case (Aschos Pty Ltd v Uorp Pty Ltd)[2], the court ordered that the copyright protection cannot be granted as the work was produced with substantial intervention of computers.

The Court of Justice of the European Union also declared in Infopaq International A/S v Danske Dagbaldes[3] Forening that the copyright work must reflect the author’s own intellectual creation, which clearly means the human author is necessary.

The second option is to grant copyright ownership on the programmer or developer itself. It is evident in countries like India, New Zealand, UK, and Hong Kong. This approach is present in section 9(3) of the UK law – Copyright, Designs and Patents Act (CDPA).

“In the case of a literary, dramatic, musical or artistic work which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken

This definition creates another question; who should be considered by law to be the person making the arrangements for the work generated, whether the person is the programmer or the user of the programme. This is asking whether the copyright should be given to the maker of the pen or the writer.

Similarly, taking the example of artificial intelligence, there are algorithms capable of generating a work and the user’s contribution to the creative process is just to press a button while the software will do its thing. So, on whom the authorship should be bestowed, creator or the user of the algorithm.

There are some case laws which indicate that the above question can be solved on case to case basis. In an English case – Nova Productions v Mazooma Games[4], the court had to decide on the authorship of computer game and it held that the player’s input is not artistic in nature, thus he has contributed no skill or labour of an artistic kind.

At last, things in the future are going to become more complex as the use of artificial intelligence by artists will become more widespread and the machines will get better by producing more creative works , further blurring the line between artwork that is made by a human and by a computer. Enormous advancement in computing and availability of large datasets for processing is gradually making computers better at mimicking humans, thereby creating problems to distinguish between human generated and machine generated work. As of now, we are not at that stage where no human intervention is required by artificial intelligence but we are not far from achieving that stage, so we have to devise some type of protection for these creative works.

Finally, granting copyright to the person who made the artificial intelligence software seems to be more pragmatic and sensible approach and it will ensure that companies keep investing in technology, keeping in mind that they will get a return on their investment.

Author: Anmol Khurana, intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1] 499 U.S. 340 (1991)

[2] 2012 FCAFC 16

[3] ECLI EU 2009/89

[4] [2007] EWCA Civ 219.

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