“Can Artists be Replaced? – Who should be the Author of Work Created by Artificial Intelligence”

With Google’s new “Deep Mind” software, it looks like soon there will be no need for artists. The software creates music based from recordings it listens to. “The Next Rembrandt” project creates software which attempts to create art mimicking Rembrandt. But who should own the work created?

 

Thus far, many jurisdictions, including Spain and Germany have stated that only works created by a human can be protected copyright.[1]

 

Australian courts took a very hard line approach, “work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human.”[2]

 

But what happens to these works in these jurisdictions? Are they “free from copyright?” and thus in the “public domain?”  If that is the case companies, like Google, that are focused on producing art via artificial intelligence are in for a bad a time.

In contrast, a few countries such as the Hong Kong (SAR), India, Ireland, New Zealand and the United Kingdom, grants the authorship to the programmer.[3] This method would surely give monetary incentive for companies to continue to develop programs that can create content, such as music, without artists.

 

The United States is arguably unclear as to their stance on authorship and work created by artificial intelligence. Since 1991, The United States had already laid some foundation for this in Feist Publications, where the court found that a copyrightable work must be the “fruits of intellectual labor” and are “founded in the creative powers of the mind.”[4] However, in 1984, the United States Supreme Court found in Sony Corp. of Am. v. Universal Studios, Inc., “intended to motivate the creative activity of authors and inventors by the provision of a special reward, and allow the public access to the products of their genius after the limited period of exclusive control has expired.”[5] This is essentially an Article 1 Section 8 of the U.S. constitution argument that copyright law should “ promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[6] This may open for interpretation the ability for developers and owners of artificial intelligence to claim copyright, and would reduce their incentive to create new programs.

 

There is a similar issue on a European level, where the Europe the Court of Justice of the European Union (“CJEU”) that a copyright work must be the “author’s own intellectual creation,”[7] and this suggests, as in US case law, that a human author is necessary for a copyright work to exist.

 

If authorship does get defined to only include human authors, this could force independently created works by AI machines to fall into the public domain. However, I would argue that there needs to be ownership. Without ownership, there is no culpability. You cannot take a non-human and make them legally responsible in a court of law. Not only would throwing these works into the public domain cause legal uncertainty, it would also undermine a key purpose of intellectual property law by de-incentivize creators to produce work- a key feature in intellectual property law not only in the U.S. but worldwide. I would support the ideas presented by Professor Annemarie Bridy and Kalin Hristov, that these works should adopt an approach like that of an “employee” and “employer” within the made for hire doctrine, in accordance with agency law, as defined in Community for Creative Non-Violence v. Reid.[8] This would prevent AI generated works from falling into the public domain and assign them a human owner. This would mean that the “authors” should be the programmer of the AI. This would allow culpability and not throw a mass production of work into the public domain.

 

 

[1] http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

[2] See Acohs Pty Ltd v Ucorp Pty Ltd.

[3] Section 178 of the CDPA defines a computer-generated work as “generated by computer in circumstances such that there is no human author of the work.”

[4] Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991).

[5] Sony Corp. of Am. v. Universal City Studios, Inc.,464 U.S. 417, 429 (1984).

[6] Article I Section 8. Clause 8 – Patent and Copyright Clause of the Constitution.

[7] See creation C-5/08 Infopaq International A/S v Danske Dagbaldes Forening.

[8] Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989).  See also Hristov, Kalin, Artificial Intelligence and the Copyright Dilemma (September 1, 2016). IDEA: The IP Law Review, Vol. 57, No. 3, 2017. Available at SSRN: https://ssrn.com/abstract=2976428.

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