Are works created by artificial intelligence object of intellectual property law?
Natalia Lavrenova, attorney-at-law, counsel at Legal Alliance Company
Natalia Abramovych, associate at Legal Alliance Company
XXI century is marked with development of artificial intelligence used not only for scientific purposes, but also for creation of intellectual property – pictures, music, video, etc. Works created by artificial intelligence are supposed to be identical to analogous works created by a human being. However, the current legislation of Ukraine and the majority of countries lags significantly behind technological achievements and does not regulate protection of intellectual property rights to objects created by artificial intellect.
Analysing global approach to considering such works as intellectual property, we can distinguish a number of key issues to settle and regulate with a view of granting legal protection to such objects.
According to laws of Ukraine “On Copyright and Neighbouring Rights” and “On Protection of Rights to Inventions and Utility Models”, author is an individual who by his creative effort made a composition, and inventor is an individual whose intellectual and creative activities produced an invention (utility model).
The current legislation of Ukraine relates authorship and creation of intellectual property only to a human being, therefore from the legal standpoint, computers, software and other artificial intelligence forms are not considered as authors and inventors. This situation exists, in particular, since artificial intelligence is not considered as a separate subject.
Authorship is immediately related to originality, one of the main characteristics subject to legal protection. Global practice uses the approach according to which copyright protects compositions whose originality reflects creative and intellectual activities of the author (so-called “personal touch” concept).
Artificial intelligence follows algorithm and quite often generates new compositions as a result of processing and analysis of the already existing ones. In this case, to grant the composition legal protection, it will be necessary to establish criteria to determine the “dose” of originality in the new composition.
Consequently, key issues to be regulated to grant legal protection to objects created by artificial intelligence are authorship and originality of compositions.
In the global practice, there are several main approaches to establish authorship of compositions created by artificial intellect:
- Author – developer of intellectual intelligence(software or code);
- Author – user of artificial intelligence(for some kinds of software);
- Author – artificial intelligence itself (introduction of “electronic person” concept).
First two approaches are the most spread and acceptable, however, they are not completely in line with the key trait of compositions as intellectual property – presence of creative and intellectual activities of a human being.
Result of intellectual and creative activities of artificial intellect’s developer will be such artificial intelligence in the form of software or code.
Here creative activities of the developer are over. Compositions generated by a program usually are not influenced by developer in any way, since the program itself creates them following specific algorithm. Thus, recognition of the developer as author of compositions generated by artificial intelligence does not correspond to the current legislation.
Recognizing user of artificial intelligence as author also is not in line with the main principles of intellectual property law. Usually all actions of the user related to creation of compositions by artificial intelligence are to launch the corresponding software and upload information and files in it, or adjust settings needed to create final result. Such actions can be hardly qualified as creative or intellectual activities.
Despite the mentioned arguments, legislation of such countries as the UK, India and New Zealand prescribes that authors of compositions generated by artificial intelligence are individuals with whose help the corresponding software created the composition. Hence, author of music written by a computer program will be a person who created basis for the software operations (developer or a person who adjusted settings)
The most exotic concept is recognition as author of compositions artificial intelligence itself. Till now, this concept has not been implemented in any country. Scientists in the IP sector have even introduced the corresponding term – electronic person. Electronic person, as planned, will have some legal capacity which will let recognize it as a separate subject of legal relations (author or inventor).
However, to introduce this approach other issues related to IP protection should be settled.
First, regarding exercise of copyright to the created compositions. As we know, every author has exclusive economic and moral rights. In particular, exclusive economic rights include the following: exclusive right to use the composition; exclusive right to allow or prohibit other persons from using the composition, which includes reproduction of compositions; public performance and public broadcast; translation; alteration, adaptation, arrangement and other changes alike. Personal moral rights are rights of the author to require recognition of his authorship; to prohibit his name from mentioning during public use of the composition; choose pseudonym, use and demand use of the pseudonym during performance instead of real name of the author; demand preservation of integrity and counteract any distortion, twisting or other transformation of the composition or any other encroachment on the composition that can damage author’s dignity and reputation. The corresponding rights can be exercised by both the author and person to whom exclusive economic rights were transferred (individual or legal entity).
In case electronic person is recognized as having IP rights, issue of exercise of any IP rights will remain open. Will the electronic person be able to demonstrate license to use the corresponding composition or apply to court for protection of rights? In far future it probably will be able. However, now such questions brings us back to the previous concepts of IP rights’ belonging to developers and users of artificial intellect. Therefore, personal moral and exclusive economic IP rights to compositions created by electronic person will belong to developer or user of the corresponding software.
Second, also the issue of IP rights term remains, in particular, for copyright and neighbouring rights. Currently, copyright term is attached to life and date of author’s death (except for compositions published anonymously/under pseudonym). This criterion cannot be applied to artificial intellect.
Therefore, in case legislation regulates protection of IP rights to compositions created by artificial intellect, copyright terms will have to be attached to other events, for example, date of composition’s publication.
It should be noted that despite the abovementioned concepts exist, globally compositions created by artificial intelligence are not recognized intellectual property. In particular, it is confirmed by court approaches to interpretation of authorship. Court practice mainly distinguishes two categories of compositions as follows:
- Those created by artificial intelligence itself;
- Those created by a human being with the help of artificial intellect.
Unlike the first category, compositions created by a human with the use of artificial intellect, provided they are original, are intellectual property. They enjoy legal protection. Compositions created exclusively by artificial intelligence are objects which do not have legal protection.
Neither in Ukraine nor in other countries compositions created by artificial intelligence are intellectual property. They can be used without any restrictions. However, this situation will not last long since development will require legal regulation and protection of rights of the corresponding subjects. Neglecting legal protection of objects created by artificial intelligence will lead to lack of interest on the market to develop the corresponding technologies due to their vulnerability.
Eventually, let’s recollect fragment from the film “Ted 2”, namely the part where the main character Ted (teddy bear) required that the court recognize its right to be considered a human being and not somebody’s property.
Defence counsel for the state:
- Who is Ted? A human being like us? Or somebody’s property? To be a human being is completely special and unique ability. This is God’s gift. God has endowed with this only one species – human being. If we decide to share this gift….what will it lead to?
- In 1856 black slave Dred Scott tried to prove in court that he is a human being and not somebody’s property. He failed, however, according to history, it was unfair. In every dispute for rights we can understand where justice is only after many years, however, when a new conflict arises, we again become blind, like before.
Ted’s defence counsel:
Who knows, maybe artificial intelligence will be able to change history (however, the monkey who made a selfie failed).
Contact the authors: Natalia Lavrenova, attorney-at-law, mediator, counsel at Legal Alliance Company, firstname.lastname@example.org; Natalia Abramovych, associate at Legal Alliance Company, email@example.com