INTELLECTUAL PROPERTY AND ARTIFICIAL INTELLIGENCE: CAN ARTIFICIAL INTELLIGENCE RECEIVE COPYRIGHT PROTECTION?
“Hey, Siri, add milk to my shopping list.” “Hey, Alexa, what is the time?”. This is one example of how artificial intelligence (AI) has become a part of our everyday lives. From voice recognition applications and programmes to self-driving cars, from chatbots to face detection programs; AI is all around us now. As a result of these developments, AI has prompted many questions and issues around its governance and regulation.
What is AI?
The term artificial intelligence was first coined by John McCarthy1 in 1956, where he stated “AI is the science and engineering of making intelligent machines, especially intelligent computer programs. It is related to the similar task of using computers to understand human intelligence, but AI does not have to confine itself to methods that are biologically observable.”2
In basic terms, AI systems work by combining large sets of data with intelligent, iterative processing algorithms to learn from patterns and features in the data that they analyse.3 Each time an AI system runs a round of data processing, it tests and measures its performance and develops additional expertise.4
AI has been used to create AI-assisted and AI-generated creative works. Ai-Da is a humanoid robot that uses cameras to see, AI algorithms, and its bionic arm to draw and paint.5 Another example is the use of AI by Alper Yesiltas, a photographer and lawyer, to generate images depicting what celebrities who have died would look like today.6 This photographer’s project, ‘As if nothing happened’ depicts realistic images of aged Michael Jackson, 2pac, Elvis Presley, and Bruce Lee among others.7
With AI assisting humans or generating creative works, copyright issues of authorship, ownership, originality, and regulation arise.
Copyright and AI
Copyright protection is awarded to creative works that are original, reduced to a fixed form, and works that would be considered eligible for copyright protection.8 For AI, meeting the last two thresholds is easier than meeting the threshold of originality. Even so, what is required for these thresholds to be met?
Originality: Refers to the combination of skill and labour in creating the work. The creator or author of a given work must have expended sufficient effort and skill in making the work.
Affixation: The work should be presented in or attached to a tangible format. This form can be of any nature so long as the work can then be perceived, reproduced, or communicated through a device. Such devices can be paper, cardboard, computer, disc, etc.
Eligibility: To be eligible, works must fall under any of the classifications of works provided under the Copyright Act to be eligible for Copyright. In Kenya, these works include literary works, musical works, artistic works, dramatic works, audio-visual works, sound recordings, and broadcasts.9 Additionally, computer programs, under Kenyan law, are considered to be literary works.
In 2016, a group of museums and researchers in the Netherlands unveiled a portrait entitled The Next Rembrandt10, an artwork generated by a computer that analyzed thousands of works by the 17th-century Dutch artist Rembrandt Harmenszoon van Rijn.11 This is another example where AI has generated creative work worthy of copyright protection.12 The Next Rembrandt piece of art was autonomously generated by AI. Looking at the thresholds that need to be met for copyright protection to accrue, The Next Rembrandt is indeed a work eligible for copyright protection (artistic work), and the piece of art was indeed reduced into a tangible form (it was 3-D printed). However, would the element of the art being autonomously generated by AI satisfy the originality threshold?
Most jurisdictions require that originality be that of a human author. For instance, Spain and Germany, state that only works created by a human can be protected by copyright.13 In Europe, the Court of Justice of the European Union (CJEU) also declared on various occasions, particularly in the case Infopaq International A/S v Danske Dagbaldes Forening, that copyright only applies to original works, and that originality must reflect the “author’s own intellectual creation.”14 This is usually understood as meaning that an original work must reflect the author’s personality, which means that a human author is necessary for a copyrighted work to exist.15
In addition, in the United States, the Copyright Office declared that it will “register an original work of authorship, provided that the work was created by a human being.” In Feist Publications v Rural Telephone Service Company, Inc. 499 U.S. 340 (1991) the Court specified that copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Similarly, in Acohs Pty Ltd v Ucorp Pty Ltd, an Australian case, the Court declared that a work generated with the intervention of a computer could not be protected by copyright because it was not produced by a human.16
The United Kingdom, however, had a consultation on policy options for changes to patent and copyright legislation to better protect technology created by artificial intelligence (AI).17 The outcome of that consultation highlighted that the UK is one of a handful of countries to protect works generated by a computer where there is no human creator.18 The “author” of a “computer-generated work” is defined as “the person by whom the arrangements necessary for the creation of the work are undertaken”19. Protection lasts for 50 years from the date the work is made.20 This duration of copyright protection is less than the 70 years given to other works.
In Kenya, the Copyright Act, in its definitions of who an author of a given work is, uses the terminology “the person”. For instance, it states that an author in relation to a literary, musical, dramatic, or artistic work, means the person who first makes or creates the work.21 Additionally, under Section 22(D) subsection 2, the Copyright Act provides that “The author of copyright works or an owner of copyright may register his or her works on the Registry.” Throughout the Act, the pronoun used to refer to an author or owner is either her, she, his, or her.22 Thus, Kenya’s current law would likely not recognise AI as having the capacity to author and/or own Copyright in a creative work.
Looking at the discussion above, one can see that many jurisdictions hold that AI cannot produce original work and that this capability is only held by human beings. At the core of the issues on whether AI-generated work can receive copyright protection, and whether AI can own, exploit and enforce legal rights, is the question of whether AI has the legal capacity to create, own, exploit and enforce the rights awarded through copyright protection. As it stands there is resistance to giving AI the legal capacity, but this will be an interesting subject to follow to see how the world will adapt to the protection of AI-generated works.
This piece is part of a series of blogs aimed at exploring the applicability of IP rights within AI creations and innovations. The first part of the series looked at patent law and AI, assessing whether AI systems can be patent inventors and owners, read it here.
1 John McCarthy was an American computer scientist and cognitive scientist. McCarthy was one of the founders of the discipline of artificial intelligence.
2 John McCarthy, ‘WHAT IS ARTIFICIAL INTELLIGENCE?’, Computer Science Department Stanford University Stanford, CA 94305 email@example.com http://www-formal.stanford.edu/jmc/ 2007 Nov 12, 2:05 a.m. Revised November 12, 2007
3 CSU Global, ‘How does AI Actually Work?’, August 9, 2021 < https://csuglobal.edu/blog/how-does-ai-actually-work#:~:text=AI%20systems%20work%20by%20combining,performance%20and%20develops%20additional%20expertise.>
6 Alper Yesiltas, ‘“As If Nothing Happened”: I Used Artificial Intelligence To See How Some Celebrities Would Look Today If They Were Alive (10 Pics)’, < https://www.boredpanda.com/ai-images-of-celebrities-as-if-nothing-happened-to-them-alper-yesiltas/?utm_source=google&utm_medium=organic&utm_campaign=organic> accessed September 21, 2022
8 Section 22 of the Copyright Act, 2001
9 Section 2 and Section 22 of the Copyright Act, 2001
10 The Next Rembrandt is a computer-generated 3-D–printed painting developed by a facial-recognition algorithm that scanned data from 346 known paintings by the Dutch painter in a process lasting 18 months. The portrait consists of 148 million pixels and is based on 168,263 fragments from Rembrandt’s works stored in a purpose-built database. The project was sponsored by the Dutch banking group ING, in collaboration with Microsoft, J.Walter Thompson marketing consultancy, and advisors from TU Delft, The Mauritshuis and the Rembrandt House Museum. <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#box>
11 Andres Guadamuz, ‘Artificial intelligence and copyright’, WIPO Magazine, October 2017 <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#box>
12 Google started funding an artificial intelligence program that will write local news articles. A short novel written by a Japanese computer program in 2016 reached the second round of a national literary prize. And the Google-owned artificial intelligence company Deep Mind has created software that can generate music by listening to recordings. Other projects have seen computers write poems, edit photographs and even compose a musical. <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#box>
13 Andres Guadamuz, ‘Artificial intelligence and copyright’, WIPO Magazine, October 2017 <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#box>
14 Case C-5/08; Infopaq International A/S v Danske Dagblades Forening < https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62008CJ0005>
15 Andres Guadamuz, ‘Artificial intelligence and copyright’, WIPO Magazine, October 2017 <https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html#box>
17 UK Gov, Press release, ‘Artificial Intelligence and IP: Consultation on copyright and patents legislation’, Published
18 Section 178, the Copyright, Designs and Patents Act 1988, UK, https://www.legislation.gov.uk/ukpga/1988/48/contents;
See also UK Gov, ‘Consultation outcome: Artificial Intelligence and Intellectual Property: copyright and patents’, updated 28 June 2022, https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyright-and-patents/artificial-intelligence-and-intellectual-property-copyright-and-patents#copyright
19 Section 9(3), the Copyright, Designs and Patents Act 1988, UK, https://www.legislation.gov.uk/ukpga/1988/48/contents
20 Section 12(7), the Copyright, Designs and Patents Act 1988, UK, https://www.legislation.gov.uk/ukpga/1988/48/contents
21 Section 2 of the Copyright Act, 2001
22 See Sections 23, 31, 35, and 45 of the Copyright Act, 2001