Research Paper – 2019
Intellectual Property (IP) law is an umbrella term for the legal framework that governs the ownership and rights associated with creations of the mind. IP law can be divided into two categories: copyright and industrial property. While some rights are granted automatically to their author, such as copyright, others might need to be registered for the author to be considered the rightful owner; this is the case for patents or trademarks. Generally, ownership rights are restricted to either natural or legal persons. In 2016, the Japanese government was considering introducing a new system for protecting intellectual property generated by a non-human entity.
With the development of artificial intelligence’s (AI) autonomy, multiple fields of law are being challenged and legal questions are emerging. The exponential increase in independence in AI leads to the belief that their creators will soon have little control over their actions. Granting personhood to AI is finding more and more supporters in the literature. Scholars are considering a new liability regime, but the question of AI’s creative works is also being discussed. Most national and international regulations grant rights to legal or natural persons, with the primary reason being the idea of protecting human creations. Behind a legal person, there are individual humans who are the actual authors of the protected matter; ingenuity has always been considered to be exclusively the provenance of mankind. However, in the case of AI, the original creator could primarily be the AI instead of the human.
The law has already implemented a regime for protecting copyrights, patents, trademarks, and many more. At first, the regulator or court could try to use this existing framework to protect AI’s creations. Nonetheless, a new set of rules will most likely be required—not only because IP law protects creations from being misused, but also because it gives economic rights.
What is Artificial Intelligence (AI)?
The perception of artificial intelligence is constantly changing. Originally perceived only as a tool, AI’s capacities have expanded over the past decades. AI programs can perform tasks requiring intelligence and have the ability to learn. Thus, the question arises whether AI could also have the ability to “create.”
Software is considered a literary work, with the author being the programmer. Nonetheless, it could be argued that some AI, which has the ability to alter its own program in response to external and internal stimuli, could also be considered the author of the software. For now, any piece of work created by a computer could fall under the notion of a computer-generated work. AI-generated works are considered computer-generated works. According to the UK Copyright, Designs and Patents Act, a computer-generated work is defined as a work that is generated by a computer such that there is no human author. Ownership of such a work is given to the person by “whom the arrangements necessary for the creation of the work are undertaken.” Authorship of computer-generated work is a question which was considered by the Whitford Committee as early as 1977. Nevertheless, computers and AI have tremendously evolved since the late 70s, but the framework regulating computer-generated work still does not reflect this reality.
Requirements for Protecting a Piece of Work Produced by AI
Rules regarding the creation of a piece of work
Intellectual property-protected works are regarded as products of the mind. According to the definition of the World Intellectual Property Organization, intellectual property refers to “products of the mind: inventions, literary and artistic works, and any symbols, names, images, and designs used in commerce.” Intellectual property was designed to compensate the author and avoid the issue of free-riding. Rewarding the author for the hard work and effort put into the creation by granting an exclusive right prevents the infringement of property and encourages innovation.
In general, to be the owner of a copyright, unlike patent law, no formal registration is required. Nonetheless, the piece of work, which is a product of the mind, should meet certain requirements. In French civil law, the definition of a product of the mind is not specified. The Code of Intellectual Property gives a negative definition, stating what is not a product of the mind. The conditions qualifying for a product of the mind were set by case law. The product should be original (in the sense of uniqueness) and should be materialized in a concrete way (i.e., take an external form). However, the criterion of uniqueness and originality has been explicitly implemented by European law and the Court of Justice of the European Union. In the United Kingdom, the Copyright, Designs and Patents Act requires the product to be a “work,” which must be “original,” and its author must be a “qualifying person.” There is no requirement in case law or statute for the work to be the result of human endeavour. The United States, however, requires in copyright registration that the work be the product of human authorship.
AI as the Author, but Humans as the Fictional Owner of the Right
Nowadays, unlike companies, AI programs by themselves are capable of producing creative literary works and are also used in the production of protectable designs. In reality, AI has already produced works independently of any human intervention, such as four pieces of classical music composed by Iamus. If such a work were created by a human, its author would be granted rights over the creation. In the case of computer-generated works, who could be considered the author? Multiple conditions must be met to claim authorship. Take again the example of an AI creating a piece of music: the person who instructed the AI to create the work may not satisfy all the conditions of originality. This person does not meet the criterion of originality. If the AI also cannot qualify as the owner of the IP rights, how could those works be regulated and protected?
Indeed, no human can truly claim to be the exclusive author of a work produced by an autonomous AI program. Therefore, allowing humans to register a piece of work generated by AI means implementing a legal fiction, which creates uncertainty and inconsistency, as it will be difficult to claim ownership.
Granting Personhood to AI
The status of a legal person allows companies to enjoy rights and be held liable. Although it is widely accepted that companies are not the actual authors of a work, ownership of copyrights is regularly granted to legal persons. In the case of an AI machine, different individuals are involved in the process, such as the original programmer, the data operator, and/or the current owner of the program. As different legal and natural persons could potentially have rights to a computer-generated work, this uncertainty is likely to result in litigation. According to Davies, legal personality should be granted to AI, which would allow them to be entitled to copyrights.
There are also alternatives. Animals are protected and have rights, such as the right not to be tortured—sometimes legal personality is not necessary to enjoy basic rights. Granting legal personality to non-humans is not a new concept, as seen in the example of corporate legal personality; however, it involves multiple components.
Conclusion
Some authors have offered possible alternative solutions to current intellectual property law. Instead of granting legal personality to AI, the work generated by the AI could have shared ownership among all legal or natural persons involved in its creation. Others have suggested the possibility of AI-generated works falling into the public domain. Such a solution, however, could have a negative effect on innovation.
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