INTELLECTUAL PROPERTY AND ARTIFICIAL INTELLIGENCE: THE CONFLICTING ISSUES OF CREATIVE OWNERSHIP By Tami Koroye INTRODUCTION The 21st century has seen the emergence of technological innovations that render the erstwhile Intellectual Property (IP) systems seemingly inept in protecting and regulating intellectual property rights.1 Artificial Intelligence (AI) has established itself as a frontier of innovation with over a $250 million market opportunity.2 With the advent of the AI, the lines of creative ownership rights attributed to the creators of intellectual works are blurred, due to the essential nature of the technology itself.3 The question of who then is attributed authorship of the work produced by AI arises.4 The goal of this essay is to answer the enquiry of ownership of creative works by AI and the seemingly disruption of the notion of romantic authorship of intellectual creations.5 To answer this question, this work shall examine the intellectual property laws of the European Union (EU), the United Kingdom (UK), United States of America (USA) and the Republic of China; these are technological advanced countries with the recognition of AI and are members of international treaties recognizing IP rights. Kenneth Einar Himma, ‘The Justification of Intellectual Property: Contemporary Philosophical Disputes’, 2006, UC Berkeley Recent Work https://escholarship.org/uc/item/20h4p5sj , accessed 7 th December 2019. 2 Peter Cowan and Jim Hinton, ‘Intellectual property and artificial i ntelligence: what does the future hold? (IAM Media, March 2018) < https://www.bereskinparr.com/files/file/IAM88_AI -and-IP_Jim%20Hinton.pdf>, accessed 10 December 2019. 3 Katharine Stephens and Toby Bond, Artificial Intelligence Navigating the IP Challenges, (Practical Law, July 2018) < https://www.twobirds.com/~/media/pdfs/ai --navigating-the-ip-challenges-plc-magazine-june2018.pdf?la=en&hash=1A69268C76EC74DED0E68F063C09B7152A9D96CF> accessed 10 th December 2019 4 Eleonora Rosati, ‘Conference report: “Can robots invent and create? A dialogue between Artificial Intelligence and Intellectual Property’, (Fide Fundacion, Mar 28, 2019) < https://www.fidefundacion.es/attachment/1509086/> accessed 10 th December 2019 5 Margot E. Kaminski, ‘Authorship, Disrupted: AI Authors in Copyright and First Amendment Law’, (2017) 51 UC Davis, 589 1 1 Intellectual Property Law. “Creativity is about ownership”. This statement by John Maeda 6 sums up what Intellectual Property law (IPL) really is about, the umbrella right of creatives to own and optimally benefit from their creative ventures or works, ranging from novels, computer programs, pictures, films, television broadcasts, performances and pharmaceuticals.7 IPL, in that sense, comprises of laws that recognize and protect the rights of people who create, invent or brand a work of art or invention.8 It encompasses a distinct body of rights, which are applicable to the many and different methods in which the ‘human’ intellect articulates itself.9 IPL includes of copyright law, patent law and trademark law, in which apiece possesses its components, linked by the need for property protection.10 Copyright can be said to be the property right of the author in relation to works inclusive of literary, artistic and musical works, films and broadcasts.11 Patent law creates limited monopoly to the exclusive use of a novel invention to the person who invents same.12 Trademark law on the other hand creates an exclusive right of any distinctive sign or design that ascertains certain goods or services to that particular person or company.13 These rights outlined are not in any way an exhaustive list of the rights IP law creates.14 The significance of protecting IP was initially acknowledged in the Paris Convention for the Protection of Industrial Property (1883)15 and the Berne Convention for the Protection of Literary and Artistic Works 16 (Berne Convention).17 The legal rights that fall under IP grant exclusive rights and ownership to do whatever with said property.18 This has drawn debates about the status and rightfulness of IP from legal and political philosophers,19 with 6 John Maeda, The Laws of Simplicity (Simplicity: Design, Technology, Business, Life), (MIT Press, 2006) Lionel Bently and Brad Sherman, Intellectual Property Law, (4 th edn, Oxford Press, 2014) 8 Catherine Colston & Kirsty Middleton, Modern Intellectual Property Law, (2 nd edn, Cavendish publishing, 2005) 9 ibid 10 Supra 3. 11 David I Bainbridge, Intellectual Property, (8 th edn, Pearson, 2010) 12 L Bently et aul, Intellectual Property Law (5 th edn, Oxford, 2018) Pg 13 WIPO, ‘What is Intellectual Property’, (WIPO)<https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf>, Accessed 10 th December 2019 14 Supra 12 15 828 U.N.T.S. 305 16 828 U.N.T.S. 221 17 WIPO, Understanding Copyright and Related Rights, (WIPO, 2016) <https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf>, accessed 12 th December 2019 18 Ibid, page 4 19 Adam D. Moore, Intellectual Property: Moral, Legal and International Dilemmas (Rowman & Littlefield, 1997) 7 2 the argument that the grant of the IP rights interferes with the rights of traders, the print media and the public.20 This school of thought opines that the function of proprietary rights is “to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals” ,21 and IP fails to perform this function, as it is neither ‘visible’, nor ‘just’.22 It is debated that the nature of property rights is justified upon the scarce resources and the preclusion of conflict for such properties, which is contrary to the nature of IP itself, as ideas are neither scarce nor allocated to a singular individual. 23 This right of monetizing ideas, which IP promotes, includes the right to regulate its use, creating a socially inefficient monopoly,24 which stretches from individuals to States, as IP is argued to be an avenue for rich countries to extract from poorer countries. This is contended to be the stance of the General Agreement on Tariffs and Trade (GATT)25 negotiations, as the US insisted on the full recognition of IP rights against poorer countries.26 Scholars maintain that asides being expensive to protect (as the Government or possessor of said rights will constantly supervise that right),27 IP also affects the design and implementation of industrial policies of developing countries in international commerce,28 and stifles the generation of ‘the best ideas’ (as not all ideas are worked on due to market constrictions).29 There are various scholarly opinions, ranging from economic disadvantages to societal implications, on why IP rights should not exist, or at best, be restricted to stifle monopoly and improve competition in society.30 However, IP exists today in developed legal systems (such as the Copyright, Designs and Patent Act31 in UK and case laws in most legal jurisdictions) and is both recognized and harmonized internationally between nations conducting international trade through the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs),32 European Patent Convention, etc. P. Drahos, ‘Decentring Communication: The Dark Side of Intellectual Property’, in T.Campbell and W. Sidurski (eds) Freedom of Communication (Aldershot, 1994) 21 N. Stephan Kinsella, ‘Against Intellectual Property’, (2001) 15 Journal of Libertarian Studies, 5 4 22 Ibid 32. 23 Supra 18, pg 21 24 Michele Boldrin and David Levine, The Case Against Intellectual Property, (2002) 92 AER, Pg 209. 25 General Agreements on Tariffs and Trade (GATT) 1867 U.N.T.S. 187, is an international agreement that was to regulate international trade, see https://www.wto.org/english/docs_e/legal_e/gatt47.pdf, accessed 10 th December 2019 26 Brian Martin, ‘Against Intellectual Property’, (1996) 1 JIPR 257 27 Supra 24, pg 259. 28 Carlos M Correa, ‘Intellectual Property: How Much Room Is Left For Industrial Policy?’, (UNCTD,2015) <https://unctad.org/en/PublicationsLibrary/osgdp20155_en.pdf > accessed 10 th December 2019 29 Supra 26. 30 Supra 33. 31 Copyright, Designs and Patents Act 1988 c. 48 32 Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 20 3 COPYRIGHT. Copyright is used to describe the aspect of IP that involves the regulation of the conception and use of creative properties for example books, records, films, and computer programs.33 Copyright law was coined in the UK from a conception of common law termed the Statute of Anne 1709, which evolved overtime to the Copyright, Designs and Patent Act (CDPA). It invests on the possessor of a copyright limited monopoly over a creative work, as he possesses author’s rights,34 on account that the content is original and converted to a tangible form.35 The right is guaranteed for a unambiguous number of years (for literary works the duration of the copyright is the lifetime of the author and 70 years more.36 ) The major aim of copyright protection is to safeguard an author’s effort, labour or skill from exploitation by others.37 Copyright comes about automatically, i.e. once an original creative work is recorded.38 As an owner of a copyright, an author has the license to reproduce, distribute, rent or lend, or publicly perform his creative work and also permit a third party to so do.39 The Berne Convention40 outlines the forms of creative works that can have copyright protection, ranging from books, pamphlets and other writings to “illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.”41 An author of an original computer software also enjoys copyright protection in the UK legal system.42 In the case of Independent television Publications v. Timeout Ltd,43 the Court held that the quality of a creative work does not deprive it from the right to be protected as copyright. To have a well-grounded premise of the argument of creative ownership in the UK and the EU, an explanation of the justification of copyright, and ultimately IP, is expedient, and the philosophical reasons why IP rights exists and how it impacts authorship in these jurisdictions. 33 Paul Goldstein, Goldstein on Copyright (3 rd edn, Wolters Kluwer) Supra 12 35 Anjaneya Reddy and Lalitha Aswath, ‘Understanding Copyright Laws: Infringement, Protection and Exceptions’, (2016) 2 IJRLS, 48 36 Supra 29 37 Sir Robin Jacob, Daniel Alexander QC & Matthew Fisher, Guidebook to Intellectual Property (6 thedn, Hart 2013) 38 s 11 (2), CDPA 39 Supra 17, pg 161 40 supra 41 Article 2, Berne Convention 42 Supra 17 43 [1984] FSR 64 34 4 Justification of Copyright The existence of Copyright, as well as IP, is justified by legal scholars and philosophers, which propound on two major fronts, the natural law theory and the utilitarian theory. In the Anglo-American legal systems, the justification for copyright is based on the “economic role of copyright”44 which is a subsect of the utilitarian theory for the justification of IP. While there is the argument of natural rights as a justification of IP.45 Hettinger renders his support to the Utilitarian model,46 which provides that intellectual property makes available financial incentives to people who produce ideas.47 The economic justification of copyright, is an extraction from the Utilitarian theory, as it provides for the need to incentivize people for the formation and distribution of creative contents as the system benefits the public as a whole which demands the production of creative works as possible.48 Enthusiasts of this theory argue that without the right incentives, producers of creative works will hardly have any form of remuneration from their creations, and a consequence of this would be the retardation of production.49 IP thus is a response of the State to prevent economic self-sabotage and failure, as it creates rights and protection for individuals who partake in socially beneficial activities.50 As stated, the ‘economic theory’ is the position adopted by the Anglo-American legal system, while in dissimilarity, the European legal system’s justification for copyright springs from the subsect of the natural law theory; the personality theory of justification of IP as the personality rights of an individual creator.51 The personality theory is of the persuasion that an individual enjoys an exclusionary moral entitlement to the acts and essence of his personality, which is a manifestation of his dispositions, preferences, experiences and knowledge.52 G.W. Hegel, who insisted that there is a moral connection between the creator and his work, propounded this theory.53 44 Charlotte Waelde, Contemporary Intellectual Property, Law and Policy, (3 rd edn, Oxford, 2011) Pg 38 The theory on natural rights of intellectual property proposes that copyright is created because such productions emanate from the natural mind of a person; hence, such a person possesses natural proprietary rights over same. See Supra 17, Pg 40. 46 Edwin C. Hettinger, ‘Justifying Intellectual Property’, (1989) 18 Philosophy & Public Affairs 31 47 ibid. 48 M Spence, Justifying Copyright, in D McClean and K Schubert, (eds), Dear Images : Art, Copyright and Culture, (Manchester Ridinghouse, 2002) Pg 389-403. 49 Supra 42, pg 38 50 William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard, 2019) 51 Supra 42 52 Kenneth Himma, The Justification of Intellectual Property: Contemporary Philosophical Disputes, (UC Berkeley Recent Work, 2006) < https://escholarship.org/uc/item/20h4p5sj>, accessed 12 th December 2019 53 Supra 44 45 5 As a theory for justification, it is identified that a creative work is an embodiment of the creator,54 a part of his person, so to speak, as the author’s personality will extend to the creative works.55 Justin Hughes, in support of this theory, proffers that the “creation of intellectual content materializes dimensions of personality”56 and consequently create a legitimate title assertion to the work.57 Scholars, who posit that the ownership of a joint work is in question as both parties infuse their individualistic personalities, have criticized this theory.58 Argument against this theory is also that the “ownership of one’s personality does not obviously translate into ownership of the expressions of personality.”59 Regardless of the arguments against, most European countries, as well as the EU adopt this theory, and accordingly, influencing the concept of originality and authorship adopted, which is in conflict with the UK’s position, exacerbating the issue of creative ownership of AI. Authorship and Originality. Although international statutes such as the Berne Convention and the TRIPs Agreement fail to define authorship,60 the author of a work simply is the person who creates an original work,61 with the essential element of originality assured necessary for copyright protection.62 What is deemed original, however, is not uniform in all legal jurisdictions,63 as the UK’s interpretation of originality, as established in the cases of University of London Press v. University Tutorial Press64 and Ladbroke v. William Hill65 is ‘labour, skill or effort’66 invested in the creation of the work. This implies that what is considered is the author’s influence to the creation of the work,67 as was stated in the case of Christoffer v. Poseidon Film 54 Supra 48 Supra 50 56 Justin Hughes, ‘The Philosophy of Intellectual Property’, (1988) 77 GLJ 287 57 Supra 50 58 Michael A. Kanning, ‘A Philosophical Analysis of Intellectual Property: In Defense of Instrumentalism’, (2012) Graduate Theses and Dissertations, <http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=5290&context=etd > accessed 12 th December 2019 59 Supra 50 60 Rosa Maria Ballardini, Kan He and Teemu Roos, ‘AI-Generated Content: Authorship and Inventorship in the Age of Artificial Intelligence’, in Taina Pihlajarinne, Juha Vesala and Olli Honkkila (eds) Online Distribution of Content in the EU, (Edward Elgar, 2019) 61 WIPO, Intellectual Property Handbook: Policy, Law and Use, (WIPO, 2004), < https://www.wipo.int/aboutip/en/iprm/> accessed 13 th December 2019 62 Supra 17, Pg 93 63 Supra 59 64 [1916] 2 Ch 601, at 609–610, per Peterson J; 65 [1964] 1 All ER 465, 469 Lord Reid. 66 Supra 17 67 Supra 17, Pg93. 55 6 Distributors,68 where the Court held that a person who pens a script on well-known characters produces an original work regardless.69 The necessary amount and skill to be invested to render the work original must be ‘substantial’ as was held in the case of Merchandising Corporation v. Harpbond.70 Although the EU works on the harmonisation of IP laws of all member states,71 its concept of originality is distinct from that of the UK. The conception of originality for European states is defined in the Computer Programs Directive 72 and the Software Directive 73 as ‘the author’s own intellectual conception’. This position was solidified by the Court of Justice of the European Union (CJEU) in the Infopaq International A/S v Danske Dagblades Forening case74 (Infopaq) where the Court was asked if the reproduction of 11 words can amount to breach of copyright. The Court concluded in the affirmative. Although the term “author’s own intellectual creation” is not explained, scholars have surmised that the interpretation is similar to the civil law position of droit d’auteur regimes,75 which is essentially the personality of the author.76 This decision was reiterated in the Bezpečnostní softwarová asociace77 case. The decision in Infopaq raises the standard and threshold of originality found in the UK’s CDPA,78 and the English Courts have taken differing approaches to establish if indeed Infopaq raises the threshold of originality.79 The Court of Appeal held in Newspaper Licensing Agency Limited V. Meltwater News UK Limited 80 (Meltwater) case that Infopaq has created a distinction, as the issue of originality is more related to the origin rather novelty or merit.81 The decision in the case of Temple Island Collections Ltd v New English Teas Ltd,82 however, went against the Infopaq position, although it referred to it. With recent 68 [2000] ECDR 487 69 ibid. 70 [1971] 2 All E.R. 657 Eleonora Rosati, Originality in EU copyright: Full Harmonization through Case law, (Edward Elgar, 2013) 72 Article 1(3), Computer Programs Directive 2009/24/EC 73 Software Directive 91/250/EC of 1 January 1993 74 [2009] EUECJ C-5/08 75 Andreas Rahmatian, ‘ Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure’, (2013) 44 IRPC 4 76 Supra 17 77 Bezpečnostní Softwarová Asociace v. Svaz softwarové ochrany v Ministerstvo kultury [2011] E.C.D.R. 3 78 Supra 73 79 Theo Savvides and Sean Ibbetson, ‘Brexit and copyright law: will the English courts revert to the ‘old’ test for originality?’ (Kluwer Copyright, 2016) <http://copyrightblog.kluweriplaw.com/2016/12/05/brexit-copyright-lawwill-english-Courts-revert-old-test-originality/> accessed 13 th December 2019 80 [2010] EHC 3099 81 Supra 77 82 [2012] EWPCC 1 71 7 events of Brexit,83 it is uncertain if the English position will fully adopt the European standard of originality in consonance with its international obligations.84 What is Artificial Intelligence? From Mary Shelly’s ‘Frankenstein’ (and before that) to James Cameron’s ‘Terminator’ motion picture franchise, the titillating concept of sentient machines with human like intelligence existing alongside mankind has always existed in literary works of science-fiction.85 This concept, in today’s 21st century, is no longer limited to fiction, as the progression of technological innovations have seen the emergence of AI or Artificial Intelligence Systems (AIS). The concept of AI and its open-endedness makes it difficult to have an encompassing definition,86 but nevertheless described as “a field of science and a set of computational technologies inspired by the ways human beings use their nervous systems and bodies to sense, learn, reason, and take action.”87 In that regard, a widely acknowledged definition of AI by Nils J. Nilsson is “that activity devoted to making machines intelligent, and intelligence is that quality that enables an entity to function appropriately and with foresight in its environment”.88 To simplify, AI is the aspect of science that is devoted to the ability for machines to be able to operate and think with human intelligence, without enabling human assistance.89 The concept of AI was birthed in 1949 by Alan Turing90 but has since then grown into spectacular areas. In 1996, Gari Kasparov, a grandmaster of chess, was defeated by IBM’s machine, known as Deep Blue in a chess competition.91 This was a defining moment for the emergence of AI, as scientists and researchers have pushed the boundaries of the creative capabilities. In 2002, Amazon introduced Roomba, a household robot with automated systems.92 The painter known as e-David is an artistically inclined robot that utilizes software to decide on how to apply Brexit is the United Kingdom’s decision to leave the EU. See more UK Gov, ‘Brexit’, (GOV.UK, 2019) https://www.gov.uk/brexit , accessed 6 th December 2019 84 Supra 77 85 Bruce G. Buchanan, ‘A (Very) Brief History of Artificial Intelligence’, (2006) 26 A1 Magazine, 53 86 Supra 3 87 Helene Margrethe Bohler, ‘EU Copyright Protection of Works Created by Artificial Intelligence Systems’, (University of Bergen, 2017) < http://bora.uib.no/handle/1956/16479> accessed 8 th December 2019 88 Nils J. Nilsson, The Quest for Artificial Intelligence: A History of Ideas and Achievements (Cambridge, 2009) 89 Alain Bensoussan & Renaud Champion, ‘Robotics Law: White Paper’, (Philpapers, 2016) https://philpapers.org/rec/BENDDL-3, accessed 11 th December 2019 90 Supra 83 91 Clara Ruipérez et al, ‘New Challenges of Copyright Authorship in AI ’, (2017) 17 ICAI 291 92 ibid 83 8 brush strokes without reproducing something already existing.93 The nascent use of AI in today’s society has earned it the ‘creativity machines’. 94 The concept of AI is fast permeating every facet of human life, as it is now applicable in countless industries extending from finance, healthcare, transportation, engineering, to fine arts.95 These innovations are possible through subsets of AI referred to as Machine Learning (ML) and Deep Learning (DL), which focus on the development of algorithms and methods intending to mimic intelligent abilities of humans.96 ML and DL are divided into two subsects; the supervised learning (‘weak AI’ where the programmer has direct control over the output97 ) and the unsupervised learning (‘strong AI’)98 which refers to more sophisticated and independent programs that produce outputs that are not foreseeable by their programmers.99 The outstanding difference between AI and other software is the level of autonomy.100 The quality and efficiency of AI depends mainly with the amount of data fed into it.101 Predicated on the data gathered, AI can continue to process data by receiving feedback and refining the results102 and is capable of free choice as it can choose betwixt alternatives with a view to arriving at the finest outcome.103 The position of the data programmer is not to be overlooked, as in brings in an element of human influence, which is considered in the argument of ownership, even though there exists AIS that learn from the scratch, such as AlphaGo Zero AIS.104 In summary, the working system of AIS has an input (relevant data made available for the system), learning algorithm (algorithm that works on the data fed), trained algorithm (works on the data from the LA) and output sequence.105 93 Supra 85 Kalin Hristov, ‘Artificial Intelligence and the Copyright Dilemma’, (2017) 57 IDEA 431 95 Mizuki Hashiguchi, ‘Artificial Intelligence and the Jurisprudence of Patent Eligibility in the United States, Europe, and Japan’, (2017) 29 IPTLJ 26 96 Zhong-Zhi Shi and Nan-Ning Zheng, ‘Progress and Challenge of Artificial Intelligence’, (2006) 21 JST 810. 97 Supra 85 98 Supra 85 99 Ryan Calo, ‘Robotics and the Lessons of Cyberlaw’, (2015) 103 CLR 513, 100 Supra 58 101 Supra 58 102 Peter Norvig and Stuart J Russell, Artificial Intelligence: A Modern Approach, (3 rd edn, Prentice Hall, 2009) 103 Matthew U. Scherer, ‘Regulating Artificial Intelligent Systems: Risks, Challenges, Competencies, and Strategies’, (2016) 29 HJLT 353. 104 Demis Hassabis and David Silver, ‘AlphaGo Zero: Learning From Scratch’, (Deepmind) https://deepmind.com/research/case-studies/alphago-the-story-so-far, accessed 10 th December 2019 105 Fenna Hornman, ‘A Robot’s Right to Copyright’, (Tilburg 2018) <http://arno.uvt.nl/show.cgi?fid=145318> accessed 11 th December 2019 94 9 Who has authorship of AI’s creative works? AI over the past decade has produced amazing works, from the book named ‘The Policeman’s Beard is Half Constructed" by Racter, an AI designed to generate prose and poetry,106 and Google’s Deep-Mind AI piano prowess107 to the Next Rembrandt (a computer generated 3-D painting)108 and the AI –generated portrait of Edmond Belamy which was sold for $432,500.109 With the nascent creative works created by AI, it draws the question on the ownership of such creative works. If AIS are creative, can they own IP? i. UK The CDPA of the UK, as stated earlier, ascribes ownership on the author of a creative work, considering the labour or skill dedicated to the creation of the work.110 The Act further provides, with regards to the development of software, that authorship of computer-generated contents is to be vested in “the person by whom the arrangements necessary for the creation of the work are undertaken”.111 This provision however, is limited to human authorship with computer software.112 This position was reinforced in the case of Express Newspapers Plc v Liverpool Daily Post & Echo Plc 113 where the Court held that a computer software is nothing more than a tool that enables an author to create his work, such as a pen or a typewriter would. In recent times, this principle was re-adopted in the case of Nova Productions Ltd v Mazooma Games,114 where the Court, in determining if the rudiments of a computer game created using bitmap files conferred the authorship of the programmer, not the person who took screenshots of the game. The Court held that the programmer indeed had authorship, as “he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer programme”.115 106 Racter, The Policeman's Beard Is Half Constructed (Grand Central, 1984) Dr. Begoña González Otero and João Pedro QuintAIs, ‘Before the Singularity: Copyright and the Challenges of Artificial Intelligence’, (Kluwer, 2018) <http://copyrightblog.kluweriplaw.com/2018/09/25/singularity-copyrightchallenges-artificial-intelligence/ > accessed 10 th December 2019 108 Andres Guadamuz, ‘Artificial Intelligence and Copyright’, (WIPO, 2017) https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html , accessed 11 th December 2019 109 Carys Craig and Ian Kerr, ‘The Death of the AI Author’, (2019) Osgoode Hall Law School Legal Studies Research Paper Series 110 ibid 111 s 178, CDPA 112 Jani Ihalainen, ‘Computer Creativity: Artificial Intelligence and Copyright’, (2018) 13 JIPLP, 724 113 [1991] 2 AC 370 114 [2007] EWCA 219 115 ibid, per Jacob LJ 107 10 This interpretation of Section 178 of the CDPA is not as straightforward in application to AI, as the person whom the Act attributes authorship to is vague and still left to interpretation. The person could be in the investor, the programmer, the deep neural network or even the person who will use the program.116 ii. EU. The CJEU’s decision in Infopaq, which states the “author’s own intellectual creation” principle, renders ownership of AI generated work uncertain. A reason for this uncertainty derives from the ‘personality’ rationale of the grant of copyright, where the created work is seen as part of the artistic disposition. Currently, no legal status have been conferred on AI 117 and consequently it cannot be inferred to have an artistic creation that falls under the qualifications of an original work that can be consigned authorship rights and have copyright protection. This position is reinforced by the interpretation of Article 2 of the Software Directive and Article 4 of the Database Directive that copyright is to be attributed to only natural persons, as they are the only sect capable of having personality traits. 118 In the Eva-Maria Painer v Standard Verlags GmbH case,119 the Court held; “…an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices’’120 This position insists on the human factor, thereby rendering AI generated work not qualified for copyright protection and open into the public domain.121 Jean-Marc Deltorn and Franck Macrez, ‘Authorship In The Age Of Machine Learning And Artificial Intelligence’, in Sean M. O'Connor (ed), The Oxford Handbook of Music Law and Policy, (Oxford, 2019) 117 Garrett Huson, ‘I, Copyright’, (2018) 35 Santa Clara High Tech. L.J. 54 . 118 Anne Lauber-Ronsberg and Sven Hetmank, ‘The Concept of Authorship and Inventorship Under Pressure: Does Artificial Intelligence Shift Paradigms?’ (2019) 14 JIPLP 570 119 [2012] ECDR 6 120 Para. 88, Painer Case 121 Supra 116 573. 116 11 iii. US The United States’ Copyright Act of 1976 is without provisions for works generated by AIS to be conferred authorship, and does not provide any explanation of who an author is. The position on AIS and authorship, however, is similar to that of the UK. This is inferred from the decision by the US District Court of the Northern District of California in the case of Naruto v. Slater,122 where the Court was approached with the question of whether a non-human can have its copyright protected (in the present case, a monkey that took a picture). The Court denied the monkey authorship, holding that the Copyright Act referred to a ‘person’ for authorship to be awarded. The decision in the Naruto case and the exclusion of non-human authors by the US Copyright Office’ Compendium,123 with reference to works produced by AI without any involvement from a human author, is to be interpreted to imply that the creative contents of AI does not possess copyright protection, under the current legal regime and fall into public domain.124 iv. China. The Chinese legal system does not stray from the position highlighted in other jurisdictions. This is established in the very recent case of Beijing Feilin Law Firm v Baidu Corporation125 where the Beijing Internet Court, in interpreting the copyright law of China, held that only works generated by hominids can enjoy copyright protection. This the Court, after an appraisal of the originality of the work manufactured by software based on information fed to it, held that diverse individuals using same software will get the same result if they input the same data 126 . This therefore connotes that the originality of the work with the human content is in doubt.127 Copyright therefore is not to be provided to a non-human authorship. Recommendation. From the listed legal jurisdictions, copyright is not to be awarded to works generated by AIS, as the essential rudiment of the human factor is deemed absent. In light of the blossoming wave of AI and its involvement in today’s creative world, these extant laws seem diminutive in their applicability. The existence of IPL is 122 No. 16-15469, 2018 WL 1902414 (9th Cir. Apr. 23, 2018) U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT OFFICE PRACTICES § 101 (3d ed. 2017). 124 Supra 92 125 No 239 [2019] 126 Ming Chen, ‘Beijing Internet Court Denies Copyright to Works Created Solely by Artificial I ntelligence’ (2019) 14 JIPLP 594 127 ibid 123 12 justified by the natural and utilitarian theories, and it is theorized (the natural and utilitarian) adversely affect the grant of copyright protection to AI generated work. To quote Pamela Samuelson, “it simply does not make any sense to allocate intellectual property rights to machines because they do not need to be given incentives to generate output”.128 With consideration to the impeachable fact that personality has not been ascribed to AIS, and will not be done so in the nearest future,129 the solution for the ascription of copyright protection to works of AIS is to be sought out elsewhere. Legal scholars have proffered various recommendations in this regard. i. AI seen as a tool Legal scholars argue that for copyright protection to be granted to AI works, extant laws should be amended to view AI as a tool that enables creation, rather than a creator itself. 130 Authorship in this instance should be conferred to either the programmers, end-users or owners, as it is argued that they have veritable claims over said creative works. 131 How authorship can be conferred is unclear (if based on skill, labour or simply investment), but it constricts the creative works with the ‘human’ influence, which is recognized in all mentioned jurisdictions. This writer humbly disagrees with this solution, as it close ended and lacking innovation, and is in stark disregard of innovation and disruption of AI to society and legal systems in the not so distant future.132 ii. Conferment of ‘legal status’ to AI. The Commission on Civil Law Rules on Robotics 133 of the EU suggests works produced by AI should be left in the public domain, so as to encourage the dissemination of creative works and information until a ‘specific legal entity’ is created for AIS (in consideration of the fact that AI has the propensity of becoming more intelligent than humans).134 The conferment of the legal status is suggested to be similar to that given to companies (legal persons).135 This position has been criticized by scholars who debate that companies Pamela Samuelson et al., ‘A Manifesto Concerning the Legal Protections of Computer Programs’, (1994) 94 COLUM. L. REV. 2308 129 Supra 115 130 Victor M Palace, 'What If Artificial Intelligence Wrote This: Artificial Intelligence and Copyright Law' (2019) 71 Fla L Rev 217 131 Supra 92, 443 132 Supra 58 133 Report by the Legal Affairs (JURI) Committee (2015/2103(INL)) in January 2015. 134 Ana Ramalho, ‘Will robots rule the artistic world?’ (2017) Journal of Internet Law 21 135 ibid 21 128 13 do have human intervention to operate, while some AIS do not.136 It is also argued that such legal status will cause a cascade of existing legal principles in terms of rights and liabilities.137 This writer humbly disagrees with this position. The grant of Sophie the humanoid citizenship in Saudi Arabia 138 is unassailable evidence that technology is developing faster than the law can catch up, but the eventual change is inevitable. It is the recommendation of this writer that a common ground is reached, with AI being accredited some rights and a sect of legal identity139 created to accommodate it. The world is changing; it is high time the law changed too. 136 Supra 58 Ugo Pagallo, ‘Apples, oranges, robots: four misunderstandings in today's debate on the legal status of AI systems’, (2018) 376 The Royal Society 168 138 Huzefa Tavawalla and Abhishek Senthilnathan, ‘Can artificial intelligence be given legal rights and duties?’ (Lexology, 2018) <https://www.lexology.com/library/detail.aspx?g=15937d6a -5421-487b-bf60-82a34cb79d79> accessed 15 th December 2019 139 David Gindis, ‘Legal personhood and the firm: avoiding anthropomorphism and equivocation’, (2016) 12 JIE 499 137 14 BIBLOGRAPHY. 1. Beijing Feilin Law Firm v Baidu Corporation No 239 [2019] 2. Bezpečnostní Softwarová Asociace v. Svaz softwarové ochrany v Ministerstvo kultury [2011] E.C.D.R. 3 3. Christoffer v. Poseidon Film Distributors [2000] ECDR 487 4. Eva-Maria Painer v Standard Verlags GmbH [2012] ECDR 6 5. Express Newspapers Plc v Liverpool Daily Post & Echo Plc [1991] 2 AC 370 6. 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